Bombay High Court
Ramdas S/O Khema Rathod And 2 ... vs Zhabalibai W/O Khema Rathod And 5 ... on 13 June, 2016
Bench: Z.A. Haq
Judgment 1 wp5219.14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5219 OF 2014
1. Ramdas S/o. Khema Rathod,
aged about 59 years,
Occupation : Agriculturist,
2. Natthu S/o. Khema Rathod,
Aged about 56 years,
Occupation : Agriculturist,
3. Subhash S/o. Khema Rathod,
Aged about 54 years,
Occupation : Agriculturist,
All 1 to 3 are R/o. Mandva,
Tq. Pusad, District : Yavatmal.
.... PETITIONERS.
// VERSUS //
1. Zhabalibai W/o. Khema Rathod,
Aged about 79 years, Occu.:Agriculturist,
2. Vasant S/o. Khema Rathod,
Aged about 61 years, Occu.:Agriculturist,
3. Pandit S/o. Khema Rathod,
Aged about 51 years, Occu.:Agriculturist,
4. Sau. Taibai Saviram Ade,
Aged about 54 years, Occu.:Agriculturist,
5. Sulibai Premsingh Chavan,
Aged about 43 years, Occu.:Household,
6. Babibai Shankar Chavan,
Aged about 40 years, Occu.:Household,
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Judgment 2 wp5219.14.odt
All 1 to 6 R/o. Mandva,
Tq. Pusad, District : Yavatmal.
.... RESPONDENT
.
___________________________________________________________________
Shri H.D.Dubey, Advocate for Petitioners.
None for respondents.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : JUNE 13, 2016.
ORAL JUDGMENT :
1. Heard learned advocate for the petitioners. There is no
appearance on behalf of the respondents, though served.
2. RULE. Rule made returnable forthwith.
3. The respondents filed Regular Civil Suit No. 30 of 2008 praying
for decree for partition and separate possession of suit property which is
decreed by the judgment dated 18 th December, 2009. Being aggrieved by the
judgment and decree passed by the trial Court, the petitioners filed appeal
before the District Court and as there was delay of about 26 days in filing the
appeal, the petitioners filed an application praying for condonation of delay.
The District Court, by order dated 14th January, 2011 allowed the application
and condoned the delay, however, subject to payment of costs of Rs.500/- to
the respondent No.1 -Zabalibai Khema Rathod. The petitioners failed to pay
the amount of costs within the stipulated time. The petitioners filed an
Judgment 3 wp5219.14.odt
application on 4th February, 2011 praying for permission to pay the amount of
costs. This application is rejected by the impugned order.
4. The petitioners have not been able to establish that they were
prevented by sufficient cause from paying the amount of costs within the
stipulated time. The reasons recorded by the learned District Judge cannot
be faulted with. However, considering the nature of controversy involved in
the appeal before the District Court and the fact that the delay in filing the
appeal was only of 26 days, in my view, the interests of justice would be sub-
served by passing the following order :
i) The impugned order is set aside.
ii) The application (Exh.16) filed by the petitioners praying
for condonation of delay is allowed. The delay in filing the
appeal before the District Court is condoned.
iii) The learned District Judge shall consider the appeal filed
by the petitioners on merits, according to law.
iv) The petitioners shall pay costs of Rs.Two Thousand to
the respondent No.1-Zabalibai Khema Rathod within one
month and produce receipt on record or the amount be
Judgment 4 wp5219.14.odt
deposited before District Court within one month. If the
amount is not paid/ deposited within stipulated time, this
order shall stand recalled and the impugned order shall stand
revived.
v) The petitioners shall appear before the District Judge-1,
Pusad on 29th July, 2016 and abide by the further orders in the
matter.
Rule is made absolute in the above terms. In the circumstances,
the parties to bear their own costs.
JUDGE
RRaut..
