Bombay High Court
Sau. Sharda Mahadeo Ingole vs Smt. Sandhya Gajananrao Wasekar ... on 24 July, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 316 of 2016
Sau. Sharda Mahadeo Ingole,
aged about 59 years,
occupation - Household,
resident of Jeevan Jyoti Colony,
behind Makrand Lawn, Jagannath
Baba Nagar, Datala Road,
Chandrapur-442 401. ..... Appellant.
Org. Plff No.1/Appellant.
Versus
1. Smt. Sandhya Gajananrao
Wasekar,
aged about 63 years,
occupation - Household,
resident of Gopalpuri,
near Fish Market,
Chandrapur.
2. Sau. Alka Bhaurao Wasekar,
aged about 57 years,
occupation - Household,
resident of Gopalpuri,
near Fish Market,
Chandrapur.
3. Smt. Rekha Bhaskar Raut,
aged about 55 years,
occupation - Household,
resident of Balaji Ward,
Chandrapur.
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4. Ankush Bhaskar Raut,
aged about 34 years,
occupation - Not known,
resident of Bazar Ward,
Chandrapur.
5. Smt. Seema Ajay Raut,
aged about 40 years,
occupation - Household,
resident of Bazar Ward,
Chandrapur.
6. Ku. Sanskruti Ajay Raut,
aged about 21 years,
occupation - Education,
resident of Bazar Ward,
Chandrapur.
7. Chandrakumar Kommatlal Adwani,
aged about 62 years,
occupation - Business,
resident of Ramnagar,
Chandrapur.
8. Smt. Bhawana Dayaldas
Mandhani,
aged about 49 years,
occupation - Household,
resident of Ramnagar, Chandrapur.
9. Ashok Harnamdas Jadhwani,
aged about 61 years,
occupation - business,
resident of Ramnagar,
Chandrapur.
10. Sau. Bhawana Naresh Lekhwani,
aged about 49 years,
occupation - Household,
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resident of Ramnagar,
Chandrapur.
11. Madhaodas Lalchand Gidwani,
aged about 64 years,
occupation - business,
resident of Balaji Ward,
Chandrapur.
.....Org. Defendants.
12. Sau. Saroj Shashikant Kadam,
aged about 50 years,
occupation - Household,
resident of Ramnagar,
Bokare Plot.
Chandrapur.
.....Org. Plaintiff No.2.
13. Sau. Meena Ramesh Wankhede,
aged about 71 years,
occupation - Household,
resident of Jatpura Ward No.2,
Chandrapur.
.....Org. Plaintiff No.3. ..... Respondents.
*****
Mr. Rohit Joshi Adv., for the appellant.
Mr. R. M. Tahaliyani, Adv., for respondent nos. 7 to 11.
*****
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CORAM : A.S. CHANDURKAR, J.
Date : 24th July, 2017
ORAL JUDGMENT:
01. Admit on the following substantial question of law:-
"Whether the lower appellate Court has properly
exercised the discretion in refusing to condone the
delay of 55 days in filing an appeal?"
02. The appellant is the original plaintiff no.1 who had filed suit
along with her sisters for partition and separate possession. This suit
was partly decreed by the trial Court granting the plaintiff no.1 and
plaintiff no.3 1/7th undivided share. The judgment of the trial Court
was delivered on 25th August, 2010. Being aggrieved, the appellant
filed an appeal on 29th November, 2010 along with an application for
condoning delay of fifty-five days. This application has been rejected
by the first appellate Court giving rise to this appeal.
03. Shri Rohit Joshi, learned counsel for the appellant, submitted
that the appellant had stated the reasons for the cause of delay in
paragraphs 2 and 3 of her application. Though the certified copy was
received on 6th September, 2010, she had requested her other two
sisters to join her in filing the appeal. As they avoided to do so and on
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account of her own ill-health, delay was caused in filing the appeal. He
submitted that the explanation as furnished was genuine and certain
documents in that regard were also filed on record. The appellant
having received lesser share in the joint family property there was no
reason to deliberately delay the filing of appeal.
04. R. M. Tahaliyani, learned counsel for respondent nos. 7 to
11, supported the impugned judgment. He submitted that the reasons
assigned are not sufficient. The ailment referred to was not of such
nature that could have prevented the appellant from filing the appeal
within limitation. He referred to the deposition of the appellant to
indicate lack of bona fides.
05. Perused the material placed on record.
06. It is not in dispute that the suit was filed by the appellant
along with her two sisters. The decree passed by the trial Court is in
favour of the appellant and one more sister. Her stand that after
receiving the certified copy on 6th September, 2010, she had
requested her other two sisters to join her in filing the appeal appears
to be acceptable. The documents placed on record as per Exh. 46
were dated 15th, 19th and 20th November, 2010. Though it is urged
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that the ailment mentioned therein was not very serious so as to
prevent the appellant from filing the appeal, I find that the appellant
was, in fact, undergoing treatment and she had come to the appellate
Court by giving a correct picture in that regard. Considering the
reasons mentioned in the application, I find that the appellate Court
ought to have exercised discretion in her favour by condoning the
delay. Same not having been done, the impugned order is liable to be
set aside.
07. The substantial question of law is answered by holding that
the first appellate Court did not properly exercise discretion in refusing
to condone delay. Accordingly, judgment dated 1st April, 2016 in
Misc. Civil Application No. 134 of 2010 is quashed and set aside. The
delay in filing the appeal stands condoned. Appeal is restored to file
for adjudication in accordance with law.
08. Second Appeal is allowed in aforesaid terms.
Judge
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