Bombay High Court
Narayan Shioramji Akolkar vs Shyamrao Shioramji Akolkar, ... on 21 March, 2016
Bench: A.B. Chaudhari
Sa453.14
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 453 of 2014
Narayan Shioramji Akolkar,
aged 72 years,
occupation - cultivator,
resident of Nerpinglai,
Tq. Morshi,
Distt. Amravati. ig ..... Appellant.
Org. Deft.
Versus
Shyamrao Shioramji Akolkar,
since dead, through his legal
heirs:-
1. Ashok Shyamrao Akolkar,
aged major, occu :
resident of Nerpinglai,
Tq. Morshi, Distt. Amravati.
2. Damodhar Shyamrao Akolkar,
aged major, occu :
resident of Nerpinglai,
Tq. Morshi, Distt. Amravati.
3. Sau. Nanibai Devidas Akolkar,
resident of Sham Nagar,
Vidyut Nagar,
Amravati.
4. Namdeo Shyamrao Akolkar,
aged major, occu :
resident of Nerpinglai,
Tq. Morshi, Distt. Amravati.
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5. Sukhdeo Shyamrao Akolkar,
aged major,
resident of Hiwarkhed,
Swastik Colony,
Telhara, Distt. Akola.
6. Sau. Lilabai Devidas Deshmukh,
aged major, occu :
resident of Hiwarkhed [Ruprao],
Swastik Colony, Tq. Telhara,
7.
Distt. Akola.
Ramdas Shyamrao Akolkar,
resident of new Hanuman
Nagar, Amravati.
8. Sau. Pushpa Vishwanath Gayki,
resident of Talegaon,
Tq. Dhamangaon Rly,
Distt. Amravati.
9. Sau. Vandana Vasantrao Arekar,
resident of Talegaon [Dashasar],
Tq. Dhamangaon Railway,
Distt. Amravati. ..... Respondent.
Org. Plff.
*****
Mr. N.B. Bargat, Adv., for the appellant.
Mr. N.A. Gawande, Adv., for respondent nos. 1 to 5, 7 and 8.
*****
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CORAM : A.B. CHAUDHARI, J.
Date : 21st March, 2016
ORAL JUDGMENT:
01. Heard. Admit on the following Substantial Question of Law:-
Whether the Lower Appellate Court
committed an error in not condoning
the delay by holding that the day-
today delay was not explained, when
the delay was of only twenty-one days
in filing the appeal before Lower
Appellate Court? .... Yes.
What order? .... Second
Appeal is allowed.
02. Heard learned counsel for the rival parties. Perused the
reasons recorded by the Lower Appellate Court for not condoning the
delay in filing the First Appeal. The delay was of only twenty-one days,
and the learned Lower Appellate Court went on to write in the reasons
that each day's delay was not explained, which, I think, is in contrast
with the Supreme Court Judgment delivered way back in the year
1987. That apart, the delay being only of twenty-one days and there
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was an explanation about the late obtaining of certified copy of the
Judgment of Trial Court, the Lower Appellate Court has blamed the
appellant for not collecting the certified copy when it was ready. It is a
common experience that it is the job of a clerk of the lawyer or the
lawyer himself to collect the certified copies when they are made
ready. It is also a matter of common experience that both the Clerk
and the Lawyer many times do not find time because they remain busy
in other court works and as a result, they are unable to collect copies
of judgments and orders. These realities could not have been ignored
by the Lower Appellate Court. Looking to all this, the learned Lower
Appellate Court was unrealistic rather than pragmatic in refusing to
condone the delay of only twenty-one days. In that view of the matter,
I think, the appeal should have been heard on merits, since filing and
hearing of the First Appeal on facts as well as in law is a matter of
right of a litigant. At any rate, care can be taken to direct the Lower
Appellate Court to decide the appeal on merits. In that view of the
matter, I make the following order:-
ORDER
[a] Second Appeal No. 453 of 2014 is allowed.
Sa453.14
[b] The impugned Order dated 17th July, 2014,
passed by District Judge-6, Amravati, below Exh.1
in Misc. Civil Application No. 167 of 2011 refusing
to condone the delay in filing First Appeal is set
aside.
[c] Misc. Civil Application No. 167 of 2011 is allowed.
The delay sought to be condoned is condoned.
[d] The Lower Appellate Court shall register the
appeal as Regular Civil Appeal and thereafter shall
hear and decide it as expeditiously as possible, in
any case within one year from the date of
registration of appeal in view of the short
controversy involved.
[e] The parties shall appear before the Lower
Appellate Court on 25th April, 2016.
Judge
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