Bombay High Court
Jaishri Sangita Apparao Gaikwad vs Poonam Apparao Gaikwad Minor U/G ... on 9 June, 2017
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3620 OF 2017
Jaishri @ Sangita w/o Apparao Gaikwad PETITIONER
Age - 45 years, Occ - Household
R/o Bodka, Taluka - Latur
District - Latur
VERSUS
Poonam d/o Apparao Gaikwad RESPONDENT
Age Minor u/g her Grand Father,
Bankat s/o Tukaram Gaikwad
Age - 68 years, Occ - Labour
R/o Sindgaon, Taluka - Renapur
District - Latur
.......
Mr. N. D. Kendre, Advocate for the petitioner
Mr. D. B. Pawar, Advocate for the respondent
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 9th JUNE, 2017
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally by
consent of learned advocates for the parties.
2. Petitioner is defendant in Regular Civil Suit No. 290 of
2008 (Old No.638 of 2007) filed by respondent - plaintiff seeking
declaration against petitioner that she being not step mother of
plaintiff - present respondent. The suit was decreed, against
which the petitioner has preferred Regular Civil Appeal No. 41 of
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2012. The petitioner claims to be an elderly lady and had to bear
a lot of responsibilities including of her maternal side. Her
mother has been ailing and is being required to be frequently
hospitalized. Since 2012, after filing of appeal, she had been
kept engaged in attending to her mother and additionally her
daughter had met with an accident and she too was required
hospitalization and nursing care. Learned advocate through
whom appeal came to be filed had assured that he would take
care and keep her informed about further developments in the
matter. However, in September, 2013, the appeal came to be
dismissed in default for non appearance of the petitioner and her
advocate. This fact was neither intimated nor noticed by the
petitioner and she had been under the impression that the
appeal is pending. In the meanwhile there had been some action
on behalf of the respondent trying to dispel her claim before the
court, upon which on inquiry, it was realized that the appeal filed
by her had been dismissed in September, 2013. It was
thereafter, an application for restoration of the appeal along with
delay condonation application had been moved. The delay
caused is about 965 days. The delay has been accordingly
explained along with requisite documents. Appellate court,
however, has according to learned advocate, went about the
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matter pedantically without taking into account actual practical
difficulties faced by the petitioner.
3. Learned advocate submits that the petitioner is an old lady
not versed in the litigation and the implications of the
statements as would be extracted from her and technical
construction has been placed on the same and the application
has resulted into failure.
4. Mr. Kendre, learned advocate submits that it is easily
discernible that there is absolutely no intention in causing delay.
The delay has been caused under the circumstances referred to
above, which are genuine. It cannot be said in the present case
that the petitioner has been benefited by causing delay. In the
circumstances, it was incumbent that the court ought to have
given anxious consideration to the attending circumstances and
particularly that there was absolutely no intention in causing
delay.
5. On the other hand Mr. Pawar, learned advocate appearing
on behalf of the respondent contends that the restoration
application has been moved only after the respondent had
moved high court and the petitioner had sat tight on the
dismissal in default for long period over three years without any
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reason. There is no justifiable reason given in the application
explaining delay. He submits that appellate judge has rightly
considered that the sufferings by the mother and daughter of the
petitioner are not such and can be said that it required
continuous attention and further that it has been elicited in the
evidence that petitioner is not staying at Bodka but at Latur. In
the circumstances, decision given by the appellate court
rejecting application for condonation of delay is not required to
be interfered with.
6. Looking at aforesaid, it emerges that petitioner is an old
lady. Her responsibilities of maintaining her ailing mother and
looking after her daughter who had met with accident are to be
borne by her. It does not appear to be the case that such
responsibilities were being shared by anyone else. Nor it appears
that the contentions on behalf of the petitioner that her mother
is ailing and requires frequent hospitalization are not dispelled by
any material. It is submitted that documents in respect of
petitioner's mother's hospitalization and care have been placed
on record.
7. In the circumstances, a wholesome approach in the matter
would have to be given shunning a pedantic or rather technical
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approach keeping at the back of mind guidelines as would be
appearing in the decisions of the Supreme Court in the cases of
"Collector, Land Acquisition, Anantnag V/s. Ms. Katiji and others" reported in
AIR 1987 SC 1353 and "Esha Bhattacharjee V/s. Managing Committee of
Raghunathpur Nafar Academy and others" reported in (2013) 12 Supreme
Court Cases 649.
8. It appears to be a fit case wherein those guidelines
deserve to be taken into consideration and the circumstances be
treated accordingly. Inconvenience caused to the other side i.e.
the respondent in the process can be met with and mended by
awarding costs.
9. In the circumstances, impugned order dated 6 th February,
2017 passed by District Judge - 4, Latur on Exhibit-1 in
Miscellaneous Civil Application No.114 of 2016 stands set aside
and application Exhibit-1 and Miscellaneous Civil Application
No.114 of 2016 stand allowed subject to payment of costs of
Rs.7500/- to be paid to the respondent. Amount of cost be
deposited with the appellate court within a period of four weeks
from today. Payment of cost is a condition precedent for onward
prosecution of the matter. Upon depositing of cost, appeal be
proceeded with as expeditiously as possible and be disposed of
preferably within a period of four months from the date of
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receipt of writ of this order.
10. Writ petition, as such, stands allowed and rule is made
absolute in aforesaid terms.
[SUNIL P. DESHMUKH, J.]
drp/wp3620-17
