Bombay High Court
Kiran Vijay Vyavhare vs Tarabai Shantilal Tilekar on 8 June, 2017
Bench: R.V. Ghuge
WP/3183/2016
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3183 OF 2016
Kiran Vijay Vyavhare
Age 26 years, Occ. Business
R/o Aadarsh Nagar, Vaijapur,
District Aurangabad. ..Petitioner
Versus
Tarabai Shantilal Tilekar
Age 35 years, Occ. agriculture
and household, R/o Shivrai Road,
Vaijapur, Dist. Aurangabad. ..Respondent
...
Advocate for Petitioner : Shri Sonavane Narendra D.
Advocate for Respondent : Miss Godsay N.S.
h/f Shri Godsay S.M.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: June 08, 2017
...
ORAL JUDGMENT :-
1. I have heard the strenuous submissions of the learned
Advocates. for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition
is taken up for final disposal.
4. The petitioner is aggrieved by the order dated 2.2.2016, by
WP/3183/2016
which, the trial Court has condoned the delay of 10 months and 1 day
in filing the restoration petition MARJI 68 of 2016.
5. Shri Sonawane has placed reliance upon the judgment of the
Honourable Supreme Court in the mater of Mahabir Singh Vs. Subhash
and others [AIR 2008 SC 246]. Miss Godsay has relied upon the
following judgments:-
(i) Esha Bhattacharjee Vs. Managing Committee of
Raghunathpur Nafar Academy and others
[(2013) 12 SCC 649],
(ii) Brijesh Kumar and others Vs. State of Haryana and
others [2014 (2) CCC 13 (SC),
(iii) Collector, Land Acquisition Anantnag and another Vs.
Mst. Katiji and others [(1987) 2 SCC 107],
(iv) N. Balkrishnan Vs. M. Krishnamurthy
[1998 AIR SCW 3139], and
(v) Manoharan Vs/ Shivrajan [2014 (5) Mh.L.J. SC 3].
6. There is no dispute that Special Civil Suit No.11 of 2014
preferred by the petitioner was decreed ex-parte. The said
judgment dated 16.9.2014 was subject matter of Special Darkhast
No.1 of 2015, vide which the petitioner had sought execution. Notice
in the execution proceedings was served on the husband of the
petitioner on 7.2.2015. He sought time to file his say on four dates
and finally, submitted his say on 15.6.2015. On 4.7.2015, the
husband of the petitioner, who was judgment debtor, consumed
WP/3183/2016
poison purportedly due to the harassment caused by the petitioner
and passed away on 8.7.2015. He had left a suicide note blaming the
petitioner and a crime has been registered against the petitioner
along with another person in the concerned police station.
7. The respondent widow preferred MARJI No. 68 of 2015 on
14.8.2015 praying for setting aside the ex-parte decree dated
16.9.2014. An application for condonation of delay of 10 months and
1 day was also filed. By the impugned order, the delay has been
condoned.
8. Shri Sonawane strenuously submits that even if it is presumed
that the deceased husband of the respondent had no knowledge
about the ex-parte decree, he was made aware of the decree, after
he was served on 7.2.2015. The respondent was also party to the suit
along with her husband. Time to file say was sought over four
months and after the say was filed, the husband of the respondent is
alleged to have committed suicide. The delay of ten months,
therefore, ought not to have been condoned under Section 5 of the
Limitation Act.
9. He places reliance upon the judgment of the Honourable
Supreme Court in the case of Mahabir Singh (supra) to support his
contention that the limitation for setting aside the ex-parte decree
WP/3183/2016
was only 30 days. He, therefore, submits that Article 123 of the
Limitation Act cannot be applied so liberally so as to condone the
delay deliberately caused by a litigant. He, therefore, submits that
the impugned order deserves to be quashed and set aside.
10. Having considered the submissions of the learned Advocates
and having gone through the judgment cited, it is apparent that the
respondent and her husband appeared to be under great stress and
pressure. After the ex-parte decree was passed against them and
after they were served by Court notice in the execution proceedings,
the pressure seems to have taken it's toll when the husband of the
respondent is said to have committed suicide. This incident cannot
be brushed aside lightly as being a negligible piece of evidence since
it speaks volumes about the pressure and stress suffered by the
respondent and her husband. The respondent widow's miseries grew
after the tragic death of her husband.
11. Shri Sonawane is right in submitting that delay cannot be
condoned out of sympathy. However, this submission may not come
to the aid of the petitioner for the reason that the delay of ten
months cannot be termed as being inordinate. Laches have not been
attributed to the conduct of the respondent. It also cannot be
ignored that when the delay is not inordinate and deliberate, it
needs to be scrutinized as to whether the applicant would be
WP/3183/2016
rendered remedieless if the delay is not condoned.
12. It also cannot be ignored that the Special Civil Suit No.11 of
2014 was filed on 9.6.2014 and the ex-parte decree was passed on
16.9.2014 i.e. in 3 months and 7 days from the date of filing of the
suit. It therefore, cannot be said that the respondent or her
deceased husband have been avoiding the trial Court and that an old
suit was being unnecessarily delayed or prolonged. In the backdrop of
the suit having been decreed in 3 months and 7 days, only because
the claim has gone unchallenged, is one factor which needs
consideration.
13. It is trite law that in execution proceedings, the executing
Court cannot go behind the decree. Refusal to condone the delay
would, therefore, amount to the respondent being practically
rendered remedieless and will have to suffer the ex-parte decree.
Considering the principles culled out by the Honourable Supreme
Court in the case of Esha Bhattacharjee (supra) keeping in view it's
earlier judgment in the matter of Collector, Land Acquisition,
Anantnag (supra), I find that the ends of justice have been met by
condoning the delay of ten months.
14. Shri Sonawane, in the alternative has prayed for costs to be
paid by the respondent, since the delay was condoned without
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imposition of costs. Miss Godsay suggests that an amount of
Rs.1,000/- would be appropriate costs. I find that costs of Rs.2500/-
would be appropriate.
15. This petition is, therefore, partly allowed. Clause (3) of the
impugned order is modified and the respondent is directed to pay
costs of Rs.2,500/- (Rs. Two Thousand and Five Hundred only/-) by
depositing the same before the trial Court within a period of four
weeks from today, failing which, the defense of the respondent
would be struck off. After the costs are deposited the petitioner will
be at liberty to withdraw the said amount, without conditions.
16. Rule is made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
