Sau. Ramkawardevi W/O ... vs Deorao Vithobaji Kokate
2017 Latest Caselaw 1415 Bom

  wp6800.15.J.odt                                                                                                1/2



           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH, NAGPUR

                           WRIT PETITION NO.6800 OF 2015

            Sau. Ramkawardevi w/o Govindlalji Jetha,
            Aged 80 years, Occ: Household,
            R/o Plot No.L-63, House No.854,
            Ward No.42, L.I.G. Colony,
            Shantinagar, Nagpur.               ....... PETITIONER

                                            ...V E R S U S...

          Deorao Vithobaji Kokate,
          Aged 70 years, Occ: Agriculturist,
          R/o Premnagar, Itwari, Nagpur.                     ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri P.N. Shende, Advocate for Petitioner.
          Shri V.S. Mishra, Advocate for Respondent.
 -------------------------------------------------------------------------------------------

                      CORAM:  R.K. DESHPANDE, J. 

                                    rd       APRIL, 2017.
                      DATE:      3


 ORAL JUDGMENT



 1]                   Rule,   made   returnable   forthwith.   Heard   finally   by

consent of the learned counsels appearing for the parties.

2] The challenge is to the order dated 24.11.2015

passed by the Trial Court rejecting the M.J.C. No.351 of 2015 for

condonation of four months delay caused in filing an application

for setting aside ex-parte decree. The Trial Court records the

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finding that the applicant/petitioner applied for certified copy on

28.04.2015, but this fact is not stated in the application for

condonation of delay. Perusal of the application for condonation

of delay shows that the applicant/petitioner applied for certified

copy on 28.04.2015, and it was registered as Civil Application

No.3497 of 2015. Without adjudicating the question as to whether

the petitioner applied for certified copy on 28.04.2015 or

20.08.2015, the application for condonation of delay has been

rejected holding that there is suppression of material fact.

The Trial Court has neither asked the parties to produce such

application nor has adjudicated this question. The order impugned

cannot therefore, be sustained.

3] In the result, the writ petition is allowed. The order

dated 24.11.2015 passed below Exh.-1 in M.J.C. No.351 of 2015

by the Trial Court is hereby quashed and set aside. The matter is

remitted back to the Trial Court to decide the application afresh

giving the parties an opportunity to produce on record the

relevant documents in support of their claim. No costs.

JUDGE NSN