Bombay High Court
Sairabee Sk. Karim And Others vs Sunil Murlidhar Kakade And Others on 14 September, 2016
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.134 OF 2013
1. Sairabee Sk. Karim APPLICANTS
Age - 51 years, Occ - Household
R/o At Present Moti Colony,
Chikalthana, Aurangabad
2. Shamim d/o Sk. Karim,
Age - 23 years, Occ - Household
R/o At Present Moti Colony,
Chikalthana, Aurangabad
3.
Nasima d/o Sk. Karim,
Age - 20 years, Occ - Household
R/o At Present Moti Colony,
Chikalthana, Aurangabad
4. Jahida d/o Sk. Karim,
Age - 17 years, Occ - Minor
under guardianship of petitioner No.1
being real mother
VERSUS
1. Sunil Murlidhar Kakade RESPONDENTS
Age -38 years, Occ - Agriculture
R/o Wadkha, Taluka and District - Aurangabad
2. Uddhav Manjitrao Kakade
Age - 33 years, Occ - Agriculture
R/o Wadkha, Taluka and District - Aurangabad
3. Jalimabee Sk. Fatru,
Age - 70 years, Occ - Household
R/o Wadkha, Taluka and District - Aurangabad
4. Sk. Nabi Sk. Fatru
Age - 68 years, Occ - Agriculture
R/o Wadkha, Taluka and District - Aurangabad
5. Sk. Rasool Sk. Fatru,
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Age - 46 years, Occ - Agriculture
R/o Wadkha, Taluka and District - Aurangabad
6. Sk. Jaffar Sk. Fatru
Age - 44 years, Occ - Agriculture
R/o Wadkha, Taluka and District - Aurangabad
7. Janbee Sk. Shahnoor,
Age - Major, Occ - Agriculture
R/o Rasoolpura, Taluka - Khultabad
District - Aurangabad
8. Sk. Nizam Sk. Karim,
Age - Major, Occ - Agriculture
R/o Wadkha, Taluka and District - Aurangabad
9.
Rajesh Jwellers Through its Proprietor
Rajesh Mugdiya, Kamgar Colony,
Chikalthana, Aurangabad
10. Somnath Automobile, Beed Road, DISMISSED
Chikalthana, Aurangabad
Through A. M. Kale,
Age - years, Occ - Business,
R/o Beed Road,
Chikalthana, Aurangabad
11. Abedabee Sk. Karim,
Age - Major, Occ - Household
R/o Beed Road, Chikalthana,
Aurangabad
12. Shahiahanbee Fatru DISMISSED
Age - Major, Occ - Household
R/o Beed Road, Chikalthana,
Aurangabad
.......
Mr. Ajit D. Kasliwal, Advocate for the applicants
Mr. V. P. Latange, Advocate for respondent No.1
Mr. A. S. Gandhi h/f Mr. P.H.Mehta, Advocate for respondent No.9
.......
[CORAM : SUNIL P. DESHMUKH, J.]
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DATE : 14th SEPTEMBER, 2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard learned
advocates for the appearing parties finally with consent.
2. This civil revision application has been preferred against
order dated 26th February, 2013 passed by District Judge-4,
Aurangabad in MARJI No.194 of 2008 condoning delay of one
month and eleven days.
3. After hearing learned advocates, it transpires that it is the
contention of respondents No.1 and 2 that they have purchased
suit property from respondents No.4 to 6 and 8. They are bona
fide purchasers for value without notice. They had come to know
about pendency of suit for partition around end of March, 2008
from village Talathi. They were in possession of suit property
pursuant to the sale deed and nobody had objected to their
possession and further that the suit was not registered with the
sub-registrar. It is further being contended that the vendors did
not contest suit in collusion with the plaintiffs in order to defeat
their rights to the suit property, nor the defendants in the suit
had preferred any appeal. Upon getting knowledge, the
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applicants had obtained certified copies of the judgment. They
had filed objection petition before the Collector. The Collector
refused to decide the question. For want of advice, appeal could
not be filed within time and consequently, there was delay as
aforesaid. Respondents No.1 and 2 further request to exclude
period of pendency of proceedings before the Collector, pursuant
to Section 14 of the Limitation Act, 1963. It is further contended
that though the suit had been decreed on 31 st August, 2006,
however, since respondents No.1 and 2 had no knowledge of the
suit proceedings, they could not file appeal within time.
4. Application for condonation of delay is resisted by present
applicants respondents No.1 to 4 in MARJI N0.195 of 2008
contending that the property has been purchased during
pendency of the suit and as such, is hit by section 52 of the
Transfer of Property Act, 1882. It was incumbent that
respondents No.1 and 2 to have got themselves made aware
about the proceedings, which they failed to do. It was further
purportedly denied that respondents No.1 to 3 had no knowledge
of the judgment and decree and that the period of proceedings
before the Collector would not be liable to be excluded under
section 14 of the Limitation Act.
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5. It was contended on behalf of respondent No.7 in said
proceedings - present respondent No.5 that the property has
been purchased knowing about pendency of the proceedings, at
a very low price. Respondents No.1 to 3 cannot be termed as
bona fide purchasers for value without notice.
6. Application for condonation of delay (MARJI No.195 of
2008) was argued on either side and several citations were relied
upon. Thereafter, the appellate court has allowed the application
MARJI No.195 of 2008 under order dated 26th February, 2013
considering the delay to be one month and eleven days.
7. Mr. Kasliwal, learned advocate points out Article 116 Clause
(b) of the Limitation Act stating that computation of delay ought
to be from the date of decree and not from the date of
knowledge, even if the date of knowledge is perceived not to
have been debated by present applicants. As such, whole
consideration of the application for condonation of delay is
improper and without application of proper Article of the
Limitation Act.
8. Learned advocate further contends that respondents No.1
to 3 had knowledge of pendecy of the suit, which can be borne
out from the evidence and further that the respondents have
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sufficient remedy to approach revenue authorities claiming their
share. He submits that looking at the application and the
material as has been available on record, it may not be said that
there is sufficient cause for condonation of delay. He, therefore,
requests to allow the revision application and set aside the
impugned order, which according to him would bring proceedings
to a permanent end.
9. On the other hand, countering aforesaid submissions, Mr.
Latange, learned advocate contends that respondents No.1 and
2 are agricultural labourers by occupation, having limited literacy
level and as such, fluctuating evidence appearing may not be
given out of context and proportion importance, as the cause
would be lost in the same. He submits that discretion has
already been exercised by the appellate court in favour of
respondents No.1 to 3 and as such, it would not be appropriate
for the high court to re-appreciate the evidence. Apart from
aforesaid, he goes on to submit that though it may appear to a
mistake, it ostensibly appears that the appellate court has
considered, delay is of only one month and eleven days,
however, what weighed with the appellate court is that said
period has been computed for delay from the date of knowledge.
It has been submitted by him that the earlier period stands
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explained since respondents No.1 to 3 had no knowledge about
the suit proceedings pending and the decision thereon and as
such, the same stands accounted for. He, therefore, contends
that ado being made about the delay being only of one month
and eleven days will have to be considered appropriately as has
been considered by the appellate court in substance. He submits
that, it is only ostensibly considered that the delay is of one
month and eleven days, whereas travel through the entire
judgment would show that it has been taken into account that
the knowledge has been in the month of August, 2008 and from
then the delay has been computed. He submits that overall
situation emerges that the delay as such, stands explained, for
the whole period from the date of decree. He therefore, urges
the court not to consider the matter pedantically.
10. In addition to aforesaid, he submits that since leave to
appeal has been granted, the application for condonation of
delay which has been filed is only an exercise for technical
compliances making the appeal maintainable. As a matter of
fact, it has other facet, since leave to appeal has been granted,
the appeal is as good as let in for contest and in the
circumstances, this application for condonation would not have
been necessary to be filed, however, in order to make procedural
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compliances complete, the application has been filed and the
same deserves to be considered accordingly.
11. After having heard learned advocates for the parties and
upon perusal of the impugned judgment, it appears that
respondents No.1 and 2 come from muffosil area and have
limited literacy level and do not appear to be in the position to
appreciate implications of procedural requirements, had moved
application for condonation of delay. It further transpires that as
far as date of knowledge of judgment and decree is concerned,
there is no rebuttal evidence in substance on behalf of present
applicants.
12. Having regard to that leave to appeal has already been
granted and the appellate court has construed reasons as are
appearing for condonation of delay, to be sufficient cause, in the
discretionary powers of this court it does not appear to be a case
wherein any intervention and interception is required to be
caused. Revision application as such, stands rejected. Rule
stands discharged.
13. It is, however, made clear that observations made in this
order have limited efficacy as far as and to the extent of
dismissal of the present civil revision application and no further.
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Since the proceedings pertain to 1995, the appellate court would
do well to proceed with the same expeditiously and dispose of
the appeal as early as possible, preferably within a period of
eight months from the date of receipt of writ of this order.
14. In view of disposal of civil revision application, civil
application No.9883 of 2013 does not survive and stands
disposed of.
ig [SUNIL P. DESHMUKH, J.]
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