Bombay High Court
Nasirkhan S/O. Samsher Khan vs Smt. Laxmibai Wd/O. Yashwantrao ... on 29 June, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION NO. 10 OF 2016
Nasirkhan Shamsher Khan,
aged about 50 years, Occ. Business,
R/o. Jai Hind Nagar, Mankapur,
Nagpur,
Permanent R/o. Zeenat Hussain
Tower, Ground Floor, Near Post
Office, Mohan Nagar, P.K.Salve
Road, Nagpur.
ig APPLICANT
...VERSUS...
Smt. Laxmibai Yashwant Radke,
aged about 70 years, Occ. Nil,
R/o. Plot No. 102, Jai Hind Nagar,
Sadiquabad Colony, Mankapur,
Nagpur. RESPONDENT
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Shri M.Y.Wadodkar, Advocate, for Applicant
Shri V.A.Umre, Advocate for Respondent
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CORAM: R. K. DESHPANDE, J.
th
DATE :29 JUNE, 2016 .
ORAL JUDGMENT
1] Heard the learned counsels appearing for the
parties.
Admit.
Heard finally by consent of the learned counsels
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appearing for the parties.
2] The trial Court passed a decree in Regular Civil
Suit No. 3225 of 2012 (Old Special Civil Suit No. 687
of 20099 on 06.01.2013. The defendant is directed to hand
over the vacant possession of the disputed portion of
the suit property to the plaintiff. The defendant is further
directed to remove the structure erected by her from the suit
property and failure to do this, it is directed that the
plaintiff shall be at liberty to remove the same and recover
the charges from the defendant. The defendant is also
directed to pay the occupation charges of Rs.32,000/- to the
plaintiff.
3] The defendant preferred Regular Civil Appeal
along with Misc. Civil Application No. 215 of 2015 on
06.04.2015 for condonation of 764 days delay caused in filing
an appeal. The material averment in paragraph no. 5 of the
application is reproduced below.
"(5) ........... That no suit summons were duly served upon
her at any point of time and she had no any knowledge
about the so called ongoing suit proceedings against her.
........"
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4] The lower appellate Court has allowed the said
application by an order dated 18.08.2015 passed in Misc.
Civil Application No. 215 of 2015. In paragraph No. 5 of the
said order, it is held as under;
"5. Having regard to the submission made above, if we
perused the record and proceeding of the suit, the Court
has passed order below Exh-1 that the defendant refused
to accept the summons and notice as per Exh-8 and also
did not allow to affix the copy of summons and notice,
hence suit proceeded exparte against her. Thus, there is
observation about the refusal of summons and notices by
the applicant. There is also application (Exh-15) for setting
aside the order to proceed exparte. This application came
to be rejected on 15.01.2011 by observing that none
present when called and the application is not supported
with the written statement. This order has not been
challenged by the applicant. Thus, admittedly matter
proceeded exparte after rejection of the application to set
aside the order to proceed exparte. The outcome of the
said order is that the suit decided exparte by judgment
dated 06.01.2013 without merit and opportunity to the
applicant to put up her defence by filing written statement,
cross examination the plaintiff and by adducing of the
evidence in defence"
However, taking into consideration the decision of the Apex
Court in case of Esha Bhattacherjee vrs. Managing
Committee of Reghunathpur Nafar Academy and others,
reported in (2013) 12 SCC 649, it is held in paragraph
Nos. 8 and 9 of the order that the application for setting aside
the exparte order was decided exparte and the suit was also
decided exparte. The applicant, therefore, could not get an
opportunity to contest the proceedings. The Court has held
that sufficient cause is made out for condonation of delay and
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hence, by imposing costs of Rs.5,000/-, the delay caused
has been condoned. The original plaintiff is, therefore, before
this Court in this revision application.
5] The explanation seeking condonation of 764
days delay has already been reproduced. The case of the
defendant was that no suit summons were duly served upon
her at any point of time and she had no knowledge about the
so called on going suit proceedings against her. The fact
that the application for setting aside the order to proceed
exparte was filed and that was dismissed on 15.01.2011, has
not been disclosed in the application for condonation of
delay. It is not the case of the defendant that thereafter she
lost the track of the case till its decision on 06.01.2013. There
is no explanation for delay from 06.01.2013 to 06.,04.2015.
The lower appellate Court had called the record of the trial
Court and upon perusal of it, the finding is recorded that the
defendant refused to accept the summons and the notice as
per Exh-8 and also did not allow to affix the copy of summons
and the notice and therefore, the suit proceeded exparte
against her. The Court has held that there is observation
about the refusal of summons and notice by the applicant. It
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is urged that the application for setting aside exparte was
filed by one Shri Dhote, Advocate, who did not bother to
attend the proceedings. Thus, the entire conduct of the
defendant lacks bonafides. The entire period is not explained.
The reasons put forth or the explanation furnished for delay
of 764 days appears to be false and not bonafide. In such a
situation, the lower appellate Court has committed an error in
condoning the delay. The order cannot, therefore, be
sustained. The same will have to be set aside.
6] In the result, the revision application is allowed.
The order dated 18.08.2015 passed in Misc. Civil Application
No. 215 of 2015 by the lower appellate Court is hereby
quashed and set aside. The Misc. Civil Application No. 215 of
2015 is dismissed. No order as to costs.
JUDGE
Rvjalit
