Bombay High Court
Dattatraya Raghunath Mahale vs Laxman Raghunath Mahale on 14 September, 2016
Bench: S.P. Deshmukh
1 SA-133.16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
SECOND APPEAL NO. 133 OF 2016
WITH
CIVIL APPLICATION NO. 2017 OF 2016
Dattatray Raghunath Mahale,
age 55 years, occup. Agriculture,
District Dhule
R/o Chikse, Taluka Sakhri,
.. Appellant
versus
Laxman Raghunath Mahale,
age 50 years, occup. Agriculture,
R/o Chikse, Taluka Sakhri,
District Dhule .. Respondent
-----
Mr. P. S. Paranjape, Advocate for appellant
Mr. S. P. Shah, Advocate for respondent
CORAM : SUNIL P. DESHMUKH, J.
DATE : 14th September, 2016
ORAL JUDGMENT:
1. Admit on following substantial question of law
'' Whether there is sufficient cause for condonation of
delay. ?
2 SA-133.16.doc
2. Heard learned counsel for the parties finally, by consent.
3. This second appeal arises out of order dated 19-12-2015
passed by District Judge-4, Dhule under which civil
miscellaneous application bearing No. 122 of 2015 filed by
present appellant seeking condonation of delay of about 55 days
in filing regular civil appeal challenging the judgment and decree
dated 30-03-2015 passed by Joint Civil Judge, Junior Division,
Sakri, dismissing suit bearing regular civil suit no. 24 of 2009
filed by present appellant seeking injunction against the present
respondent in respect of the property described in the plaint, has
been rejected.
4. After hearing learned counsel for the parties, it appears
that suit had been dismissed on 30-03-2015 and an application
immediately thereafter had been moved for certified copies
which were received at the end of appellant around 18-04-2015
and as such limitation of thirty days expired during summer
vacation to the civil courts around 18/19-05-2015. The courts
reopened on 08-06-2015 and application had been moved on
09-07-2015 and in the process delay has been caused in
preferring appeal against trial court's decree.
5. According to learned counsel for respondent, delay from
08-06-2015 to 09-07-2015 has not been properly explained save
3 SA-133.16.doc
and except stating that father of the parties died, however, he
had died on 08-05-2015.
6. Although this is being submitted so, it would have to be
taken into account that the parties to the suit come from
mofussil area and further that the appellant appears to have
stated that although some lawyer had been instructed earlier on,
he had, after the appellant had come out of religious obligations,
had told that the matter will have to be lodged at Dhule and a
lawyer will have to be engaged at that place and in the process
some time has been consumed. It is in this context that the
matter will have to be appreciated.
7. The appellate court in paragraph no. 7 of the impugned
order has observed that proper treatment will have to be given
to the delay and the courts will have to be liberal while dealing
with application for condonation of delay, however, the appellant
is required to give proper explanation in support of said
application. In the circumstances, it appears that while further
judgment had been delivered, the appellate court had been
oblivious of discussion with lawyer and subsequently lawyer
having told the appellant to approach Dhule based advocate
which fact has not been taken in the account while rejecting
application. In any case, it would be required to be taken into
4 SA-133.16.doc
account that the appellant does not appear to have derived any
benefit by causing deliberate and intentional delay.
8. In the circumstances, the substantial question of
law stands answered accordingly affirmatively.
9. Second appeal stands allowed.
10. Impugned order dated 19-12-2015 passed by District
Judge-4, Dhule, ig dismissing civil miscellaneous application
bearing No. 122 of 2015 filed by present appellant seeking
condonation of delay stands set aside. civil miscellaneous
application bearing No. 122 of 2015 stands allowed.
11. In view of aforesaid, civil application stands disposed of.
SUNIL P. DESHMUKH,
JUDGE
pnd
