Bombay High Court
M/S. P.D.T. Trading Company Thr. ... vs Shri. Digant S/O Rajesh Shah on 28 June, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.2058 OF 2016
1) M/s. P.D.T. Trading Company
through its Partner
Shri Vishnu s/o Pandurang Talmale,
Aged about 47 years, Occ.- Business,
Off. At - Plot No.163, Small Factory
Area, Bagadganj, Nagpur - 440 008.
2) Shri Vishnu s/o Pandurang Talmale,
Aged about 47 years,
Occupation - Business.
3) Shri Praveen s/o Pandurang Talmale,
Aged about 44 years, Occ. - Business,
Both R/o Behind J.N. Tata Parsi Girls
High School, Ganjipeth, Nagpur. .... PETITIONERS
VERSUS
Shri Digant s/o Rajesh Shah,
Aged about 28 years, Occ. - Architect,
R/o Bhojraj Gopaldas, Nehru Putla Road,
Itwari, Nagpur - 440 002. .... RESPONDENT
______________________________________________________________
Shri S.R. Bhongade, Advocate for the petitioners,
Shri R.M. Sharma, Advocate for the respondent.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 28
JUNE, 2016.
th
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ORAL JUDGMENT :
1. Heard Shri S.R. Bhongade, Advocate for the petitioners
and Shri R.M. Sharma, Advocate for the respondent.
2. Rule. Rule made returnable forthwith.
3.
The petitioners-tenants filed appeal before the District
Court challenging the judgment and decree passed by the trial Court.
As there was delay in filing the appeal, the petitioners had filed an
application praying for condonation of delay. The District Court, by
the order dated 21-11-2015, condoned the delay, however, on
condition that the petitioners pay Rs.5,000/- to the respondent within
fifteen days from the date of the order. The petitioners failed to pay
Rs.5,000/- to the respondent within fifteen days and therefore, the
petitioners filed an application seeking permission to deposit the
amount of costs. This application is rejected by the impugned order.
4. The learned Advocate for the petitioners has submitted
that the lapse on the part of the petitioners is because of the negligence
of the clerk of the Advocate who represented the petitioners. It is
submitted that the clerk had noted wrong date in the diary because of
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which the Advocate representing the petitioners could not notice the
order passed by the District Court. The learned Advocate for the
petitioners has submitted that the respondent will not be prejudiced if
the petitioners are permitted to pay the amount of costs and the appeal
filed by the petitioners is registered and taken up for hearing.
5.
The learned Advocate for the respondent has pointed out
from the record that the petitioners have been negligent in defending
the matter at every stage. It is submitted that the petitioners are not
entitled for any discretionary order. It is further submitted that the
learned District Judge has properly considered the matter and as the
petitioners have failed to establish the reason put forth by them for
seeking condonation of delay, the application is rightly rejected by the
learned District Judge. It is prayed that the petition be dismissed with
costs.
6. The decree is for possession. The respondent has not been
able to show that the petitioners have gained anything by taking the
risk of being non-suited for not complying the order passed by the
District Court.
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7. Considering the facts of the case, 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 petitioners shall pay the amount of Rs.5,000/- as
directed by the District Court by the order dated
21-11-2015 to the respondent or deposit the amount
before the District Court within one month.
(iii) In addition, the petitioners shall pay an amount of
Rs.5,000/- to the respondent or deposit this amount also
before the District Court within one month, towards the
costs of this petition.
(iv) If the amount of Rs.10,000/- as directed above is paid
within one month, the appeal filed by the petitioners
before the District Court be registered and considered
according to law. If the petitioners fail to deposit the
amount within one month, the impugned order shall stand
restored.
(v) The petition is disposed in the above terms.
JUDGE
adgokar
