Bombay High Court
Asruba Raghu Dambe, Died Thr. ... vs Gopalrao Madhavrao Deshmukh And ... on 10 August, 2017
Bench: Sangitrao S. Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.201 OF 2012
WITH
CIVIL APPLICATION NO.3540 OF 2012
1. Ashruba s/o. Raghu Dambe (died)
1/A. Shivaji Asruba Dambe,
Age : 42 years, Occ. Agri.,
1/B. Kalyan Asruba Dambe,
Age : 40 years, Occ. Agri.,
1/C. Alka Babasaheb Dambe,
Age : 40 years, Occ. Household,
1/D. Prashant Babasaheb Dambe,
Age : 27 years, Occ. Agri.
1/E. Dropadabai w/o. Asruba Dambe,
Age : 70 years, Occ. Household,
2. Uttam Raghu Dambe,
Age : 40 years, Occ. Agri.,
3. Attam Raghu Dambe,
Age : 47 years, Occ. Agri.
4. Haribhau Rama Dambe,
Age : 72 years, Occ. Agri.,
All r/o. Yellamb Ghat,
Tq. Dist. Beed
5. Devidas Rama Dambe (died)
through Lrs.
5/A. Parwatibai Devidas Dambe
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Age 70 years, Occ. Household,
r/o. Jatalwadi,
Tq. and Dist. Beed
5/B. Asrabai Narayan Amate,
Age : 57 years, Occ. Household,
r/o. Jatalwadi,
Tq. and Dist. Beed
5/C. Sunandabai w/o. Madhav Yadav,
Age : 53 years, Occ. Household
r/o. Jaalwadi, Tq. and Dist. Beed.
5/D. Babasaheb Devidas Dambe,
Age : 40 years, Occ. Agri.,
r/o. Jatalwadi,
Tq. and Dist. Beed
5/E. Chaturbhuj Devidas Dambe,
Age : 38 years, Occ. Agri.
r/o. Jatalwadi,
Tq. and Dist. Beed
5/F. Bharat Devidas Dambe,
Age : 35 years, Occ. Household,
r/o. Jatalwadi,
Tq. and Dist. Beed ..Appellants
(Orig.Defendants)
Vs.
1. Gopalrao s/o. Madhavrao Deshmukh,
Age 77 years, Occ. Pensioner,
r/o. Yellamb Ghat, Tq. and Dist. Beed,
at present Parli Vaijnath
Tq. Parli Vaijnath, Dist.Beed
2. Anant s/o. Madhavrao Deshmukh,
Age : 48 years, Occ. Agri.
r/o. Yellamb Ghat,
Tq. and Dist. Beed
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at present Parli Vaijnath
Tq. Parli Vaijnath, Dist.Beed
3. Vilas s/o. Ramchandra Deshmukh,
Age : 43 years, Occ. Service,
r/o. Panchayat Samiti Beed,
Tq. and Dist. Bee,
4. Vidhya w/o. Shripadrao Joshi,
Age : 40 years, Occ. Household,
r/o. Parli Vaijnath,
Tq. Parli Vaijnath, Dist.Beed
5. Padmabai w/o. Ramchandra Deshmukh,
Age : 68 years, Occ Household,
r/o. Nagar Road, Beed
6. Sindhubai w/o. Manoharrao Kulkarni,
Age 43 years, Occ. Household,
r/o. Dhondipura, Beed
7. Umabai w/o. Shankarrao Tekale,
Age : 50 years, Occ. Household,
r/o. Washi, Tq. Washi,
Dist. Osmanabad
8. Subhash s/o. Keshavrao Deshmukh,
Age : Major, Occ. Service,
r/o. Kaij, Tq. Kaij,
Dist. Beed
9. Prakash s/o. Keshavrao Deshmukh,
Age : Major, Occ. Service,
r/o. Khadkeshwar,
Aurangabad
10.Leela w/o. Babanrao Khiste,
Age : 58 years, Occ. Household,
r/o. Umapur, Tq. Georai,
Dist. Beed.
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11.Mandabai w/o. Narharrao Garge,
Age : 53 years, Occ. Household,
r/o. Lahuri, Tq. Kaij,
Dist. Beed
12.Trivenibai w/o. Kashinathrao (Deleted - Resp.
Deshmukh, Age : 53, Nos.13 to 17 are
Occ. Household, the L.Rs. of
r/o. Chapkhana Galli, Resp. No.12.)
Beed As per Court's
order dt.21.4.14)
13.Murlidhar s/o. Kashinathrao
Deshmukh, Age : Major,
Occ. Business,
r/o. Chitalbast-Rashtrapati
Road, Hyderabat (A.P.)
14.Damodhar s/o. Kashinathrao
Deshmukh, Age : Major,
Occ. Service, r/o. Chapkhana
Galli, Beed
15.Madhusudan s/o. Kashinathrao
Deshmukh, Occu. Service,
R/o.Georai, Tq. Georai,
Dist. Beed
16.Govind s/o. Kashinathrao
Deshmukh, Age : Major,
Occ. Service,
r/o. Georai, Tq. Georai,
Dist. Beed.
17.Mukund s/o. Kashinathrao
Deshmukh, Age : Major,
Occ. Business,
r/o. Subhash Road,
Beed
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18.Vinayak s/o. Pandurang
Deshmukh, Age : Major,
Occ. Service,
r/o. Pilkhana,
Hyderabad (A.P.)
19.Vinayak s/o. Pandurang
Deshmukh, Age : Household,
Occ. Service,
r/o. Pilkhana,
Hyderabad (A.P.)
20.Manorama w/o. Manoharrao
Joshi, Age : Major,
Occ. Household,
r/o. Wadwani, Tq.Wadwani,
Dist.Beed
21.Vimal w/o. Murlidharrao Dani,
Age : Major, Occ.Household,
r/o. Ashti, Tq.Ashti,
Dist.Beed
22.Maina w/o. Balkrishnarao Joshi,
Age:Major, Occ.Household,
r/o. Chikalthana,
Aurangabad
23.Mangal w/o. Shrinivasrao Joshi,
Age : Major, Occ. Household,
R/o. Kada, Tq. Ashti,
24.Rajni w/o. Uttamrao Wazarkar,
Age : Major, Occ. Household,
r/o. Shahunagar, Beed,
Dist. Beed
25.Laxmi w/o. Balkrishna Tekalr, ..Respondents
Age : Major, Occ. Household, (R.Nos.1 to 4-orig
R/o. Washi, Tq.Washi, Plfts.)(Resp Nos.
Dist Osmanabad 5 to 25 - Orig.
Deft. Nos.7 to 26)
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Mr.Girish Naik (Thigale), Advocate for appellants
Mr.S.G.Chapalgaonkar, Advocate for respondent nos.1
and 2
----
CORAM : SANGITRAO S. PATIL, J.
RESERVED ON : JULY 31, 2017
PRONOUNCED ON : AUGUST 10, 2017
JUDGMENT :
The original defendant nos.1 to 5 in R.C.S.
No.66 of 1998 have preferred this appeal against the
order dated 10.02.2012 passed in Misc. Civil
Application No.64 of 2010 passed by the learned
Principal District Judge, Beed, whereby the said
application, seeking condonation of delay in filing
the appeal, came to be rejected.
2. The learned Counsel for the appellants
submits that respondent nos.1 to 4 (original
plaintiffs) had filed the above-numbered suit seeking
partition and separate possession of the lands
bearing survey Nos.115/A and 118/A situate within the
local limits of village Yellam Ghat, Tq. and Dist.
7 SA-201-2012
Beed. The said lands were previously owned by one
Narayan Deshmukh. The predecessors-in-title of the
appellants were the tenants of the said lands.
Accordingly, they were the declared as tenants by the
competent authority. One Vitthal, who was the son of
Narayan Deshmukh filed R.C.S. No.164 of 1977 to
recover possession of the said lands against the
deceased Ashruba and other appellants. In that suit,
a compromise was arrived at and the land ad-measuring
4 Acres 7½ Gunthas out of Survey No.115/A and the
land ad-measuring 6 Acres and 3½ Gunthas out of
survey No.118/A, were agreed to be sold by Vitthal in
favour of appellant nos.4 and 5 and the father of the
deceased Ashruba. Accordingly, Vitthal executed the
sale deeds in their favour in the year 1978.
3. The learned Counsel further submits that
respondent nos.1 to 4 filed R.C.S. No.66 of 1998 for
partition of the said lands and for recovery of
possession of their shares therein. The deceased
Ashruba was looking after the said suit. He died in
8 SA-201-2012
the year 2002. Thereafter, his son Babasaheb was
looking after the family affairs as a Manager of the
family. He also died in 2004. His son Shrikant died
in the year 2008. Due to the demise of these three
members of the family, the entire family was under a
great sorrow. He further submits that the legal
representatives of Vitthal had promised the
appellants that the suit filed against them would be
withdrawn. The possession of the appellants over the
suit lands was not disturbed by anybody. In the
circumstances, the appellants could not contest the
suit and it came to be decreed ex-parte against them
on 01.09.2005. He submits that it is only when the
T.I.L.R. issued notices to the appellants on
07.01.2010, as per the directions of the Collector
for partition of the above-mentioned lands, that they
actually got knowledge of the execution proceedings
on 02.02.2010. Thereafter, they approached the
Advocate and filed the appeal with an application for
condonation of delay of 4 years, 3 months and 16
9 SA-201-2012
days. He submits that the appellants showed
sufficient cause for the delay in filing the appeal.
Appellant no.2 examined himself in respect of the
cause for the delay in filing of the appeal.
Respondent nos.1 to 4 did not produce any evidence to
controvert the evidence of appellant no.2. The delay
was not deliberate or intentional. Therefore,
according to him, the learned Judge of the first
appellate Court should have taken a liberal view and
should have condoned the delay in filing the appeal,
considering the fact that the dispute relates to
immovable property, wherein valuable rights of the
appellants are involved. In support of this
contention, he relied on the following judgments :-
(i) N.Balakrishnan Vs. M.
Krishnamurthy, (1998) 7 SCC 123;
(ii) Namdeo s/o Kishan Sakhare Vs. Sow.
Dwarkabai w/o Jija Sakhare & others, (Second
Appeal No.502 of 2009, High Court of Bombay,
Bench at Aurangabad, decided on 08.12.2010);
10 SA-201-2012
(iii) Pravinchandra Dhanjibhai Kotak Vs.
Murli Agro Products Limited, 2005 (5) Bom.
C.R.172;
(iv) Ramjas Foundation and another Vs.
Union of India and others, (2010) 14 SCC 38;
4. On the other hand, the learned Counsel for
respondent Nos.1 to 4 strongly opposed this appeal.
He submits that no sufficient cause was shown by the
appellants for the inordinate delay of more than four
years in filing the appeal. He submits that though
the appellants were aware of pendency of the suit,
they did not bother to participate in the proceedings
of the suit and allowed it to be decreed ex-parte. He
submits that the appellants had shown total lethargy
and utter negligence in contesting the suit that was
filed against them by respondent Nos.1 to 4.
According to him, the appellants are not entitled to
get any discretionary relief in the matter of
condonation of delay. The valuable rights accrued to
11 SA-201-2012
respondent Nos.1 to 4 because of the inordinate
unexplained delay on the part of the appellants,
cannot be taken away in the absence of any sufficient
cause for the delay, even by awarding costs. In
support of this contention, he cited the following
judgments:-
(i) Vasant Vithal Gawand Vs. Shantaram
Tukaram Gawand (since deceased) by his
L.Rs. Prakash Shantaram Gawand and others,
2016 (1) Mh.L.J. 89;
(ii) Gotiram Laxman Pawar Vs. Pravin
Babasaheb Borde and others, 2012 (3) Mh.L.J.
464;
(iii) Basawaraj and another Vs. Special
Land Acquisition Officer, (2013) 14 SCC 81;
(iv) Maniben Devraj Shah Vs. Municipal
Corporation of Brihan Mumbai (2012) 5 SCC
157;
12 SA-201-2012
5. Considering the rival contentions raised by
the learned Counsel for the appellants and that of
respondent nos.1 to 4, the following substantial
question of law arises for my determination :-
Whether the appellants have
established sufficient cause for delay
in filing the appeal before the first
appellate Court as contemplated under
Section 5 of the Limitation Act ?
6. Admit the appeal. On admission, the learned
Counsel for the respondents 1 to 4, who only are
contesting respondents, waives notice on their
behalf. With the consent of the learned Counsel for
the contesting parties, heard the appeal finally.
7. Here a reference may be made to the judgment
in the case of Esha Bhattacharjee Vs. Managing
Committee of Raghunathpur Nafar Academy and ors.,
13 SA-201-2012
2013 STPL (Web) 737 SC, wherein the Hon'ble the Apex
Court, after considering various previous judgments,
including some of the judgments cited by the learned
counsel for the parties, has been pleased to
formulate the principles governing the question of
condontion of delay. These principles are common in
all the judgments cited by the learned counsel for
the parties. Therefore, I do not think it proper to
consider each of the judgments cited by them
individually. It would be sufficient if the
principles laid down by the Hon'ble the Apex Court in
paragraphs 15 and 16 of the judgment in the case of
Esha Bhattacharjee (supra) are considered, which read
as under:-
15. From the aforesaid authorities the
principles that can broadly be culled out
are:-
(i) There should be a liberal,
pragmatic, justice-oriented, non-pedantic
approach while dealing with an application
for condonation of delay, for the courts are
14 SA-201-2012
not supposed to legalise injustice but are
obliged to remove injustice.
(ii) The terms "sufficient cause" should
be understood in their proper spirit,
philosophy and purpose regard being had to
the fact that these terms are basically
elastic and are to be applied in proper
perspective to the obtaining fact-
situation.
(iii) Substantial justice being paramount
and pivotal the technical consideration
should not be given undue and uncalled for
emphasis.
(iv) No presumption can be attached to
deliberate causation of delay but, gross
negligence on the part of the counsel or
litigant is to be taken note of.
(v) Lack of bona-fides imputable to a
party seeking condonation of delay is
significant and relevant fact.
(vi) It is to be kept in mind that
adherence to strict proof should not affect
public justice and cause public mischief
because the courts are required to be
15 SA-201-2012
vigilant so that in the ultimate eventuate
there is no real failure of justice.
(vii) The concept of liberal approach has
to encapsule the conception of
reasonableness and it cannot be allowed a
totally unfettered free play.
(viii) There is a distinction between
inordinate delay and a delay of short
duration or few days, for to the former
doctrine of prejudice is attracted whereas
to the latter it may not be attracted. That
apart, the first one warrants strict
approach whereas the second calls for a
liberal delineation.
(ix) The conduct, behaviour and attitude
of a party relating to its inaction or
negligence are relevant factors to be taken
into consideration. It is so as the
fundamental principle is that the courts are
required to weigh the scale of balance of
justice in respect of both parties and the
said principle cannot be given a total go by
in the name of liberal approach.
16 SA-201-2012
(x) If the explanation offered is
concocted or the grounds urged in the
application are fanciful, the courts should
be vigilant not to expose the other side
unnecessary to face such a litigation.
(xi) It is to be borne in mind that no
one gets away with fraud, misrepresentation
or interpolation by taking recourse to the
technicalities of law of limitation.
(xii) The entire gamut of facts are to be
carefully scrutinized and the approach
should be based on the paradigm of judicial
discretion which is founded on objective
reasoning and not on individual perception.
(xiii) The State or a public body or an
entity representing a collective cause
should be given some acceptable latitude.
16. To the aforesaid principles we may
add some more guidelines taking note of the
present day scenario. They are :-
(a) An application for condonation of
delay should be drafted with careful concern
and not in a half hazard manner harbouring
17 SA-201-2012
the notion that the courts are required to
condone delay on the bedrock of the
principle that adjudication of a lis on
merits is seminal to justice dispensation
system.
(b) An application for condonation of
delay should not be dealt with in a routine
manner on the base of individual philosophy
which is basically subjective.
(c) Though no precise formula can be
laid down regard being had to the concept of
judicial discretion, yet a conscious effort
for achieving consistency and collegiality
of the adjudicatory system should be made as
that is the ultimate institutional motto.
(d) The increasing tendency to perceive
delay as a non-serious matter and hence,
lackadaisical propensity can be exhibited in
a non-challant manner requires to be curbed,
of course, within legal parameters.
8. In the present case, there is positive
evidence of appellant No.2 that the deceased Ashruba
was looking after the suit. He died in the year 2002.
18 SA-201-2012
After his demise, his son Babasaheb was looking after
the suit. He also died in the year 2004. His son
Shrikant died in the year 2008. Due to the demise of
the three members of the family, the entire family
was under the shadow of sorrow. Moreover, nobody had
ever disturbed their possession over the suit land.
The legal heirs of Vithal, who had executed sale
deeds in respects of the suit lands in favour of
appellant nos. 4 and 5 and the deceased Ahsruba also
had assured that the suit would be withdrawn. In the
circumstances, the appellants could not pay attention
to the suit and ultimately, it came to be decreed ex-
parte. He deposes that the appellants came to know
about the ex-parte decree passed in the suit only
when they received the notice dated 07.01.2010 from
the T.I.L.R. and after receiving that notice, they
immediately approached the Advocate and filed the
appeal. According to him, the delay was not as a
result of any negligence on the part of the
appellants. Appellant no.2 has been cross-examined on
19 SA-201-2012
behalf of respondent nos.2 to 4. The fact that the
appellants came to know about execution of the
ex-parte decree passed in R.C.S. No.66 of 1998 only
after they received the notice dated 07.01.2010 from
the T.I.L.R., has not been challenged in his cross-
examination. Even the above-mentioned reasons given
by appellant no.2 also have not been challenged in
his cross-examination. Respondent nos.1 to 4 did not
examine any of them to controvert the evidence of
appellant no.2. In the circumstances, the evidence of
appellant no.2 ought to have been accepted by the
learned Judge of the first appellate Court. The
evidence of appellant no.2 disclosed sufficient cause
for the delay in filing the appeal. However, the
learned Judge of the first appellate Court took a
hyper-technical view and wrongly discarded the
positive and controverted evidence of appellant no.2
without assigning any reason in the impugned order,
as to why he was not inclined to believe the evidence
of appellant no.2. The impugned order is totally
20 SA-201-2012
silent about the evidence appellant no.2. In
paragraph 11 of the impugned order without
considering the evidence on record, the learned Judge
opined that the delay has not at all been explained
satisfactorily.
9. In my view, the order passed by the learned
Judge of the first appellate Court without at all
considering the evidence appellant no.2, is ex-facie
perverse. The learned Judge of the first appellate
Court has not even framed proper points for
determination. The points framed by him are as
under :-
"(i) Whether petitioners have
established that the delay of 4 years 3
months and 16 days is neither
intentional nor deliberate ?
(ii) Whether delay is required to
be condoned ?
(iii) What order ?"
21 SA-201-2012
10. In fact, it was necessary for the learned
Judge of the first appellate Court to frame a point,
whether the appellants established sufficient cause
for the delay in filing the appeal. The said point
has not at all been framed by the learned Judge. As
such, he misdirected himself and did not consider the
case of the appellants in its proper perspective.
The negative finding in respect of point no.1 above,
would indicate that the learned Judge of the first
appellate Court was of the view that the delay was
intentional and deliberate. Admittedly, the dispute
involved in the suit pertains to immovable property.
If the ex-parte decree passed against the appellants
is executed, they are going to loose possession of
the immovable property. If that be so, it will be
difficult for one to accept that the appellants
intentionally or deliberately would allow the decree
to be passed ex-parte against them and further
deliberately cause delay in filing the appeal.
22 SA-201-2012
11. If the facts of the present case are tested
on the touch-stone of the afore-mentioned principles
laid down by the Hon'ble the Apex Court, I am of the
view that this is a fit case, in which a liberal and
pragmatic view will have to be taken to do
substantial justice to the parties, since the
appellants have established sufficient cause for
delay in filing the appeal. The order passed by the
learned Judge of the first appellate Court being not
legal, proper and correct, is liable to be quashed
and set aside, of course, subject to payment of costs
to respondent nos.1 to 4, so that they also would be
duly compensated.
12. In my view, it will be reasonable and proper
to direct the appellants to pay Rs.5000/- to
respondent nos.1 to 4 as costs.
13. In the result, I pass the following order :-
(i) The appeal is allowed.
23 SA-201-2012
(ii) The impugned order is quashed and set aside.
(iii) The appellants shall deposit costs of
Rs.5,000/- in the first appellate Court, for being
paid to respondent nos.1 to 4 within four weeks from
today.
(iv) After the appellants deposit the amount of
costs, the first appellate Court shall register the
appeal after verifying that it complies with other
formalities.
(v) Civil Application stands disposed of.
[SANGITRAO S. PATIL]
JUDGE
kbp
