Anant Marotrao Lokhare vs Snehangar ...
2017 Latest Caselaw 4085 Bom

                                                          WP/2530/1998
                                    1

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                    WRIT PETITION NO. 2530 OF 1998

 Anant Marotrao Lohkare,
 Age 65 years, Occ. Business,
 R/o Snehanagar, Parbhani.                           ..Petitioner

 Versus

 1. Snehnagar Cooperative Housing
 Society Limited, Parbhani, through
 it's Chairman Manikrao Shankarrao
 Khalikar, Age 60 Years, Occupation
 Pensioner, R/o Snehnagar, Nanded.

 2. Durgadas Damodharrao
 Mohanpurkar, age 24 years, 
 Occupation Student, 
 R/o Pawde Galli, Dist. Parbhani.

 3. Manik Bapurao Shinde
 Age major, Occ. Business
 R/o Snehanagar, Parbhani.                           ..Respondents.
                              ...
           Advocate for Petitioner : Shri F.K.Patel
               h/f Shri P.R.Katneshwarkar 
                              ...
            CORAM : RAVINDRA V. GHUGE, J.

Dated: July 06, 2017 ...

ORAL JUDGMENT :-

1. The petitioner is aggrieved by the order dated 6.5.1998,

by which, his Appeal No.30 of 1998 has been rejected by the

Maharashtra State Cooperative Appellate Court, Mumbai, Bench

at Aurangabad (hereinafter, referred to as the "Appellate

Court").

WP/2530/1998

2. I have considered the strenuous submissions of the

learned Advocate for the petitioner. Though, Court notice has

been served upon the contesting respondent Nos.1 to 3, they

have not entered an appearance either in person or through an

Advocate.

3. The issue is with regard to a residential immovable

property at Plot No.36 in the respondent No.1 / Cooperative

Society. As the petitioner owed arrears towards the society, it

filed a Dispute No.350 of 1996 before the Cooperative Court,

seeking recovery of mesne profits and damages of Rs.96,000/-,

eviction of the petitioner and for acquiring the possession of the

residential property. The Cooperative Court has specifically

recorded in the judgment that though the petitioner was duly

served through registered post acknowledgment due, he still

chose to remain absent. Contention of the petitioner is that the

notice was not properly served. Consequentially, by the

judgment dated 30.6.1997, the dispute was allowed.

4. The petitioner preferred an Appeal before the Cooperative

Appellate Court on 13.4.1998 after he received a notice on

16.12.1997 in execution proceedings. An application for

condonation of delay was filed and by the impugned order, the

WP/2530/1998

same has been rejected.

5. This Court, by order dated 24.6.1998, had admitted the

petition and refused ad-interim relief. After hearing the parties

on 19.8.1998, interim relief was granted in terms of prayer

clause (B). Thus, the impugned order as well as the judgment of

the Cooperative Court has been stayed.

6. There is no dispute that the ex-parte judgment of the

Cooperative Court is dated 30.6.1997 and the appeal was

preferred on 13.4.1998. The limitation period is said to be of

two months. The petitioner preferred his Appeal after a delay of

7 months and 13 days. It is stated that the petitioner received

the notice in execution proceedings on 16.12.1997 and was not

aware about the pending dispute before the Cooperative Court.

If the date of knowledge as per the contention of the petitioner is

to be accepted, the Appeal was delayed by 2 months.

7. It is settled law that in matters of condonation of delay a

liberal view has to be taken, save and except in cases where

oblique motives, dishonest intentions and laches are attributed to

the conduct of the applicant. In the instant case, I do not find

from the record that laches and dishonest intention have been

WP/2530/1998

attributed to the conduct of the petitioner. It is equally settled

that if by refusal to condone the delay, the applicant would be

rendered remediless and if the issue of immovable property and

especially residential accommodation is at issue, a pragmatic

view has to be taken, rather than taking a pedantic view going by

technicalities.

8. The Honourable Apex Court in the matter of Collector,

Land Acquisition Anantnag and another Vs. Mst. Katiji and others

[(1987) 2 SCC 107] and Isha Bhattacharjee Vs. Managing

Committee of Raghunathpur Nafar Academy and others [(2013)

12 SCC 649], has laid down the principles for condonation of

delay. Paragraph No.3 of the Collector, Land Acquisition's case

(supra), which reads as under:-

" 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean

WP/2530/1998

that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

9. Notwithstanding the above, while condoning the delay,

the Court should be conscious about the hardships and

inconvenience because caused to the other side, who would be

continued in litigation if the delay is condoned. The hardships of

the other sides can be reduced by imposing costs.

10. In the instant case, the petitioner is directed by the

WP/2530/1998

Cooperative Court to be evicted and to pay Rs.800/- per month

for illegal occupation of the premises w.e.f. 11.9.1996 till

handing over of possession. The petitioner is, therefore, required

to pay an amount of Rs.1,94,400/- from October 1996 till July

2017 for the occupation of the said premises as he is held to be a

trespasser. Therefore, I deem it proper to balance the equities by

directing the petitioner to deposit an amount of Rs.1,00,000/-

before the Cooperative Appellate Court, Bench at Aurangabad as

a condition for condoning the delay and registering the Appeal.

11. In the light of the above, this petition is partly allowed.

The impugned order dated 6.5.1998 is quashed and set aside.

The delay caused in filing the Appeal is condoned on the

condition that the petitioner shall deposit an amount of

Rs.1,00,000/- (Rs. One Lakh only/-) before the Cooperative

Court within eight weeks from today, failing which, the Appeal

which would be registered under the directions of this Court,

shall stand dismissed.

12. The learned counsel for the petitioner prays for a date to

appear before the Cooperative Appellate Court, Bench at

Aurangabad. Request is accepted. He shall appear before the

Cooperative Appellate Court, Bench at Aurangabad on 4.8.2017.

WP/2530/1998

13. The Cooperative Appellate Court, Bench at Aurangabad

shall register the Appeal and issue notices to the respondents in

the Appeal. Needless to state, if the amount as directed is not

deposited before the Cooperative Appellate Court, Bench at

Aurangabad within the time ordered, the Cooperative Appellate

Court, Bench at Aurangabad would therefore, proceed to dismiss

the Appeal on this count.

( RAVINDRA V. GHUGE, J. ) ...

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