Bombay High Court
Puja Ram Jadhav And Others vs Ram Sampati Jadhav And Others on 15 June, 2017
Bench: S.P. Deshmukh
11415.2015WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11415 OF 2015
1. Puja D/o Ram Jadhav
Age : 16 years, Occu: Education,
2. Pratiksha D/o Ram Jadhav
Age : 13 years, Occu: Education,
3. Rutuja D/o Ram Jadhav
Age : 11 years, Occu: Education,
4. Asha D/o Ram Jadhav
Age : 8 years, Occu: Education,
5. Seetabai w/o Ram Jadhav
Age : 35 years, Occu: Household
and Agriculture,
All R/o Kininaware Tq. Ausa Dist. Latur
petitioners no. 1 to 4 are minor
under Guardianship of petitioner No. 5
and petitioner no. 5 given Power of Attorney
to Arjun s/o Bhairavnath Suryanshi
Age 40 years, Occu: Agri,
R/o Shiur Tq. & Dist. Latur. ...Petitioners
Versus
1. Ram s/o Sampati Jadhav
Age 40 years, Occu: Nil,
R/o Kininaware Tq. Ausa
Dist. Latur.
2. Shalubai w/o Sitaram Gaikwad
Age 57 years, Occu: Business & Household
R/o as above.
::: Uploaded on - 11/07/2017 ::: Downloaded on - 28/08/2017 06:17:33 :::
11415.2015WP.odt
2
3. Sitaram S/o Yashwant Gaikwad
Age : 60 years, Occu: Agri,
R/o as above. ...Respondents
...
Mr. M. L. Dharashive, Advocate for petitioners
Mr. Sachin Deshmukh, Advocate for respondents
no. 2 and 3.
...
[CORAM: SUNIL P. DESHMUKH, J.]
Date: 15th June, 2017
ORAL JUDGMENT:
1. Rule. Rule made returnable forthwith and heard
finally with consent of learned advocates for the parties.
2. Writ petitioners challenge order dated 9th September,
2015 passed by Joint civil judge, junior division, Ausa on
exhibit-44 in civil miscellaneous application no. 40 of 2011,
seeking condonation of delay in presenting application for
restoration of regular civil suit no. 276 of 2007, which had
been dismissed-in-default on 21st September, 2010. Since
that date, eight months' delay has been caused to lodge
application for restoration of suit.
3. It transpires on hearing that, it is petitioner no. 5, who
11415.2015WP.odt
has been at the helm of affairs of litigation, and due to
medical problem, she was referred to take treatment at
Mumbai and Pune and as such, she was unable to attend
the court, and that could not keep track of developments of
the proceedings, as such, delay has been caused which is
neither deliberate nor intentional. Additionally, it appears
that, witnesses had not been examined. While considering
application for condonation of delay, learned judge had
been swayed by consideration that original certificate had
not been placed on record and photocopy of medical
certificate has been produced without permission to lead
secondary evidence, it is inadmissible evidence. It is in this
context, the application was turned down and rejected on
the background that the suit had been instituted in 2007 by
petitioners for partition and separate possession, which had
been dismissed-in-default on 21st September, 2010.
4. It also appears that, unsound health condition of
petitioner no. 5, is the matter which has been reason given
for delay in making application for restoration after
dismissal of suit in default. In support of the same,
petitioner had given some material in the form of
photocopy of the medical certificate and some documents.
11415.2015WP.odt
Although respondents have resisted delay condonation, yet,
facts and circumstances are not that no material had been
produced on record on behalf of petitioner no. 5. May be is
deficient prosecution of suit, yet, request for condonation of
delay the same would not be a relevant consideration. The
events, occurrences and scenario, calls for attention.
While considering delay condonation application, guidelines
appearing under the judgments of the Supreme Court
particularly those in the case of Collector, Land Acquisition,
Anantnag V/s. Ms. Katiji and others reported in AIR 1987 SC 1353,
and in the case of Esha Bhattacharjee V/s. Managing Committee
of Raghunathpur Nafar Academy and others reported in (2013)
12 Supreme Court Cases 649 may have to be taken into
account. Additionally, it may not have on account of
petitioner having any particular delay.
5. Learned counsel Mr. Deshmukh appearing for
respondents no. 2 and 3, purports to oppose, however, is
not in a position to counter veracity of reasons causing
delay.
6. As such, taking overall view, it would be expedient to
11415.2015WP.odt
consider the request made in exhibit-44 in civil
miscellaneous application no. 40 of 2011 in regular civil suit
no. 276 of 2007, and grant the same.
7. In view of aforesaid, writ petition is allowed in terms
of prayer clause (B) and stands disposed of.
8. Rule is made absolute accordingly.
[SUNIL P. DESHMUKH, J.]
vdk
