Bombay High Court
Devaji S/O Narayan Hatwar vs Chandrakant Damduji Akre, And ... on 21 July, 2017
Bench: A.S. Chandurkar
sa365.13.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.365 OF 2013
APPELLANT: Devaji S/o Narayan Hatwar, aged about
70 years, Occ: Agriculturist, R/o
Pachgaon, Tah. Umrer, Distt. Gondia.
-VERSUS-
RESPONDENTS: 1. Chandrakant Damduji Akre (Deleted)
2. Jaglal S/o Baburaoji (Deleted)
3. Moreshwar S/o Punaji Surpande, Aged
about 50 years, Occ: Nil, R/o Borgaon,
Gittikhadan, Borgaon Slum, Nagpur,
Tah. and District Nagpur.
4. Punjabrao S/o Dayaram Hate (Deleted)
5. Zibal S/o Harichandra Atram (Deleted)
Respondents No.2 to 5 R/o Chikna, Tah.
& Distt. Nagpur.
6. Joint Charity Commissioner, Nagpur
Region, Nagpur.
7. The Collector, Nagpur.
8. Maroti Fakirji Hate, Aged about 34
years, Occ:
9. Krishnaji Punaji Surpande, Aged about
67 years, Occ: Agril., R/o Chikna
(Navegaon), Tah. & Distt. Nagpur.
::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 00:53:06 :::
sa365.13.odt 2/6
10. Maroti Deosthan, PTR No.A-870 (as
alleged), R/o Chikna (Navegaon), Tah.
& Dist. Nagpur.
11. Hemraj S/o Krishnaji Surpande, Aged
about 47 years, Occ: Farmer,
12. Vasant S/o Fakiraji Hate, Aged about 47
years, Occ: Farmer,
Respondents No.11 & 12 R/o Navegaon
(Chikna), Tah. & Distt. Nagpur.
13. Sunderbai w/o Shyamrao Potbhare,
aged about 67 yrs., Occ: Household,
14. Manoj S/o Shyamrao Potbhare, aged 42
yrs, Occ: Private work,
15. Roshan S/o Shyamrao Potbhare, aged
about 33 years, Occupation: Private
work,
Respondents no.13 to 15, r/o Nalsaheb
Chowk, Lal Gota, Telipura, Nagpur.
16. Kalpana w/o Bhaurao Fating, Aged
about 47 years, Occ: House hold work,
R/o Near House of Prabhakar Yeole,
Karnal Chowk, Nagpur.
17. Vandana w/o Manoj Dhoble, Aged about
45 years, Occupation: Household, R/o
Hansapuri (Kumbharpura), near Pimple
Tree), Nagpur.
::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 00:53:06 :::
sa365.13.odt 3/6
18. Nilu W/o Haribhau Gaidhane, Aged
about 40 years, Occupation: Household
work, R/o Minimata Nagar, Near
Aparna Beauty Parlour (by the side of
Rly. Crossing) Nagpur.
Shri I. S. Charlewar, Advocate for the appellant.
Shri M. G. Sarda, Advocate for the respondent nos.3 and 6 to 12.
Shri N. B. Bargat, Advocate for respondent nos.13 to 18.
CORAM: A.S. CHANDURKAR, J.
DATED: 21
st JULY, 2017.
ORAL JUDGMENT :
1. The following substantial question of law was framed while
admitting the appeal:
Whether the Appellate Court has committed an
error in rejecting the application for condonation
of 108 days delay caused in filing an appeal
challenging the decree for possession passed in
the counter claim by the trial Court?
2. The appellants are the original plaintiffs who had filed suit
for declaration that they were the owners of the suit land by virtue of sale
deed dated 10-4-1972. A prayer was also made for grant of perpetual
injunction seeking to restrain the defendants from disturbing their
possession. The defendants besides filing their written statement raised a
sa365.13.odt 4/6
counter claim. They sought possession of the suit property on the
ground that the plaintiffs possession was illegal. The trial Court by its
judgment dated 14-3-2011 dismissed the suit and decreed the counter
claim. Being aggrieved by the dismissal of the suit, the plaintiffs filed an
appeal before the District Court. As the appeal was filed beyond
limitation, a separate application was moved for condonation of delay.
By the impugned order, this application has been rejected
3. Shri I. S. Charlewar, learned Counsel for the appellant
submitted that the appellate Court erred in not condoning the delay. He
submitted that in the application, it was stated that the appellant was a
poor agriculturist and he could not arrange for litigation expenses. It is
on that count that the delay was caused. According to the learned
Counsel, the appellate Court was not justified in observing that the
appellant had not filed any document in support of his contention.
Relying upon the judgment of the Hon'ble Supreme Court in Collector,
Land Acquisition Anantnag and another v. Mst. Katiji and others AIR
1987 SC 1353, it was prayed that the delay ought to be condoned.
4. There is no appearance on behalf of the respondents. Even
on 20-7-2017, there was no appearance on their behalf. With the
assistance of the learned Counsel for the appellant, I have perused the
impugned order and the material placed on record.
5. The application filed by the appellant indicates that it was
sa365.13.odt 5/6
his case that being a poor agriculturist, he could not arrange for litigation
expenses and court fees. It was further stated that the delay was not
deliberately caused and if the same was not condoned he would lose
possession. By filing reply, this prayer was opposed. The first appellate
Court by observing that the applicant did not place any document on
record rejected the application. From the material on record, I find that
the refusal by the first appellate Court to condone the delay on the
ground that no document was filed on record was not justified. A poor
agriculturist could not be expected to file any document to indicate his
financial position. The appellant having suffered the decree for
possession, I find that adjudication on merits was warranted considering
the nature of the litigation. The observations of the Hon'ble Supreme
Court in Collector, Land Acquisition (supra) that 'cause of substantial
justice' should be preferred apply to the facts of present case. Hence, I
find that the appellate Court committed an error in rejecting the
application for condonation of delay.
6. The substantial question of law is accordingly answered in
favour of the appellant. Consequently, the order dated 17-7-2013 in
Misc. Civil Application No.564 of 2011 is set aside. The delay in filing
the appeal stands condoned. The appeal is restored on file. Said appeal
shall be decided expeditiously by the first appellate Court on its own
merits.
sa365.13.odt 6/6
7. The interim order operating in the present proceedings shall
continue to operate for a period of eight weeks after which the appellant
would be at liberty to seek appropriate relief from the appellate Court.
8. The second appeal is allowed in aforesaid terms. No costs.
JUDGE
/MULEY/
