Bombay High Court
Ratna D/O. Govindram Pipalwa ... vs Smt. Jyoti W/O Suryakumar Gandhi on 29 November, 2016
Bench: Ravi K. Deshpande
1
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.1508 of 2016
Ratna d/o Govindram Pipalwa,
After marriage Ratna w/o Raju Khekde,
Aged about 45 years,
Occupation - Household,
R/o Hospital Road, Wardha,
Tahsil and District Wardha. ... Petitioner
Versus
Smt. Jyoti w/o Suryakumar Gandhi,
Aged about 55 years,
Occupation - Business,
R/o "Dhup-Chav",
Shivaji Chouk,
Kelkarwadi, Wardha,
Tahsil and District Wardha. ... Respondent
Shri D.R. Bhoyar, Advocate for Petitioner.
Shri J.R. Kidilay, Advocate for Respondent.
Coram : R.K. Deshpande, J.
th
Dated : 29 November, 2016
Oral Judgment :
1. Rule, made returnable forthwith. Heard finally by
consent of the learned counsels appearing for the parties.
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2. A decree for specific performance of contract was passed
by the Trial Court on 27-3-2001 in Special Civil Suit No.101 of
1995. The original defendant preferred First Appeal No.149 of
2001 before this Court, which was admitted on 3-7-2001 and the
stay to the decree passed by the Trial Court was also granted.
The first appeal was pending in this Court. However,
on 4-8-2006, this Court passed a conditional order, which is
reproduced below :
" Appellant to file private paper book within a period of
eight weeks from today failing which the appeal shall
stand dismissed without further reference to the Court."
The appellant failed to file a private paper book within a period
stipulated by this Court, and hence on that ground, the appeal
was dismissed without reference to the Court on 29-9-2006.
3. The petitioner filed an application for restoration of first
appeal along with the application for condonation of delay
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caused in filing an application for restoration. The delay was
from 29-9-2006 to 13-3-2013, i.e. for about 7 years. The
explanation furnished in the application for condonation of delay
was that the counsel appearing for the appellant before this
Court in First Appeal No.149 of 2001 was not present on
4-8-2006, when this Court passed a conditional order. The said
order, therefore, could not be complied with. It was for the first
time when a notice of execution proceedings was received in the
month of January 2013 that the appellant came to know about
dismissal of the first appeal by this Court on 29-9-2006 as per the
conditional order. The application for condonation of delay was
signed by the counsel appearing for the appellant.
4. The matter was thereafter transferred to the lower
Appellate Court due to change in the pecuniary jurisdiction, and
by the impugned order dated 19-12-2015 passed by the lower
Appellate Court, the application for condonation of delay has
been rejected on the ground that no sufficient cause is made out,
and that if the delay is condoned, it will cause the great prejudice
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to the respondent.
5. The learned counsel for the respondent/original plaintiff
has opposed the claim for condonation of delay and restoration
of first appeal. He submits that the decree passed on 27-3-2001
was executed on 17-4-2014 and the sale-deed was executed in
favour of the plaintiff through the Court. The possession of the
property was taken on 19-6-2014. He, therefore, submits that
the great prejudice would be caused if the delay caused is
condoned and the appeal is restored.
6. No doubt, that there is a delay of more than 7 years
caused in filing an application for restoration. From the events
pointed out above, it is apparent that the counsel appearing for
the appellant was not present before this Court when the
conditional order was passed on 4-8-2006, and there is no reason
to disbelieve the statement that for the first time in the month of
January, 2013, when the petitioner received the notice in
execution proceedings, the knowledge of dismissal of the first
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appeal was acquired. It is not the case of lack of bona fides and,
therefore, the lower Appellate Court ought to have condoned the
delay by taking a liberal view of the matter. The delay caused
has been sufficiently explained. The lower Appellate Court ought
to have, therefore, allowed the application for condonation of
delay.
7.
In the result, the petition is allowed. The order
dated 19-12-2015 passed by the lower Appellate Court below
Exhibit 1 in M.A.R.J.E. No.187 of 2013, rejecting the application
for condonation of delay, is hereby quashed and set aside. The
delay caused is condoned subject to payment of costs of
Rs.5,000/- by the petitioner/appellant to the respondent within a
period of one month from the date of appearance of the parties
before the lower Appellate Court. The parties to appear before
the lower Appellate Court on 9-1-2017. If the respondent
refused to accept the costs, the same shall be deposited in the
Court. If the amount is not so paid or deposited, the lower
Appellate Court shall treat this application as dismissed. Upon
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compliance of this order, the lower Appellate Court shall proceed
to decide the application for restoration of the first appeal.
8. Rule is made absolute in above terms. No order as to
costs.
Judge.
Lanjewar
