Bombay High Court
Sarubai Dattu Parse, Osmanabad vs Latabai Sudhakarrao Tirthkar, ... on 13 December, 2017
Bench: S.P. Deshmukh
1 WP NO.3036 of 2014
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3036 OF 2014
Sarubai w/o Dattu Parse,
Died. Through Power of Attorney:
Yallappa s/o Dattu Parse
Age 72 years, Occ. Pensioner,
R/o Anand Nagar, Osmanabad,
Tq. & Dist. Osmanabad.
...Petitioner
Versus
Latabai w/o Sudhakarrao Tirthkar
Through Power of Attorney,
Sudhakar s/o Baliram Tirthkar
Age 59 years, Occ. Service,
R/o. Anand Nagar, Osmanabad
Tq. & Dist. Osmanabad.
...Respondent
...
Mr. Sanjay A.Wakure, Advocate, for petitioner.
Mr. A.S.More, Advocate, for sole respondent.
...
CORAM: SUNIL P. DESHMUKH, J.
DATE : December 13th, 2017
***
ORAL JUDGMENT:
1. Rule. Rule made returnable forthwith.
2. Heard learned Counsel for the parties finally by
consent.
2 WP NO.3036 of 2014
3. Regular Civil Suit No.170/1996 had been instituted
by the present respondent seeking recovery of possession of
encroached portion of suit house from petitioner-defendant.
The suit was decreed on 13.12.2004. The writ petitioner had
preferred an appeal there-from bearing Regular Civil Appeal
No.11/2014, however, the appeal came to be dismissed in
default on 23rd August, 2011. The petitioner, under the
circumstances, had lodged an application for restoration of the
appeal, along with an application bearing Miscellaneous Civil
Application No.34/2012, on 27.1.2012, for condonation of
delay, which had occurred in filing the application for
restoration of the appeal, stating therein that the petitioner had
not been keeping good health and, under the circumstances,
had not kept up with the progress of the appeal, and the order
passed therein, as the appeal had been pending since 2004.
Learned Counsel for the petitioner submits that the application
for condonation of delay had been dismissed by the trial Court
under order dated 9.8.2012, observing that the reason
assigned by the petitioner that he was not keeping good health
is not sufficient, since the same had not been supported by any
documentary evidence.
3 WP NO.3036 of 2014
4. Learned Counsel points out that against rejection of
application for condonation of delay in preferring restoration
application, belatedly, Appeal from Order was filed in this Court.
This Court, under its order dated 27th February, 2014,
condoned the delay in approaching this Court under Appeal
from Order, however, also held that the Appeal from Order is
not maintainable and, had granted liberty to to the petitioner to
make appropriate approach against order dated 9.8.2012
passed by the trial Court. Accordingly, present writ petition
has been filed.
5. Learned Counsel for the petitioner Mr. Sanjay A.
Wakure refers to that the petitioner-defendant was not
conversant with the legal procedure, and had been lying
indisposed for quite some time while the order of dismissal in
default had been passed and even thereafter. He submits that
the proceedings had been lingering on since 2004 and, as such,
the petitioner, who had been initially diligently following the
proceedings had subsequently became little lax; may be that
the petitioner had not been kept informed about the progress in
the matter. He submits that there had been no deliberate
intention underlying in getting the Regular Civil Appeal
dismissed in default, nor in making the approach belatedly,
4 WP NO.3036 of 2014
and further that genuine and honest reasons have been put
forth, and as such, the applications for delay condonation and
restoration of the appeal, deserve to be allowed. He, therefore,
entreats the Court to allow the writ petition and to restore
Regular Civil Appeal.
6. Learned Counsel for respondent Mr. A.S.More,
however, finds it difficult to accede to the request made in the
Writ Petition contending that it was expected that the petitioner
ought to be diligent in the proceedings and that while the
matter had been dismissed in default in the year 2011, the
proceedings for restoration had been initiated quite belatedly
without submission of any material in support of the
contentions taken up for restoration as well as for delay
condonation and, in the circumstances, the impugned order is
not liable to be interfered with. Although learned Counsel for
respondent had submitted so, he is not in a position to deny
that the Regular Civil Appeal had been pending since 2004 to
2011, without effectively being heard and to challenge
veracity of the reasons which had caused delay in making the
restoration application.
7. In the circumstances, it appears to be expedient to
5 WP NO.3036 of 2014
accede to the request made for condonation of delay in
restoration and for restoration of Regular Civil Appeal in the
interest of justice in order to have decision on merits in the
appeal. It is not the case of the respondent that any particular
advantage has been gained by the petitioner because of
approaching belatedly for restoration of the appeal. In view of
the fact that Regular Civil Appeal is pending since 2004 till
2011, and for lapse on the part of petitioner occurring for
smaller period thereafter, it would not be proper to block the
decision of the appeal on merits.
8. In the circumstances and in the interest of justice,
the impugned order dated 23.8.2011, dismissing the appeal in
default, and order dated 9.8.2012, refusing to condone the
delay, are set aside. Regular Civil Appeal is restored to its
original position as has been subsisting before 23.8.2011.
Regular Civil Appeal to be proceeded with expeditiously.
Rule made absolute in the aforesaid terms. Writ Petition
stands disposed of.
(SUNIL P. DESHMUKH)
JUDGE
...
AGP/3036-14wp
