Santosh Laxman Jadhav vs Neeta Mahesh Rana And Another
2017 Latest Caselaw 738 Bom

                                      {1}                              sa205-17

 drp
         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                      SECOND APPEAL NO.205 OF 2017

 Santosh s/o Laxman Jadhav                                     APPELLANT
 Age - 33 years, Occ - Hotel Business,
 R/o Bhimnagar, Bhavsinghpura,
 Aurangabad

          VERSUS

 1.       Mrs. Neeta w/o Mahesh Rana                       RESPONDENTS
          Age - 45 years, Occ - Business
          R/o 24, Kushal Nagar,
          Jalna Road, Aurangabad

 2.       Kuldeepsingh s/o Jaisingh Dhody,
          Age - 65 years, Occ - Business
          R/o H. No.5-1-102, Near Gurudwara,
          Osmanpura, Aurangabad

                               .......

Mr. Patel Shaikh Ashpak Taher, Advocate for the appellant Mr. R.S.Deshmukh h/f Mr. N.R.Dayma, Adv. for respondent No.2 .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 15th MARCH, 2017

ORAL JUDGMENT :

1. Heard learned advocates for the appearing parties.

2. This second appeal has been moved against refusal to

condone delay of two years in preferring appeal against order

dated 18th July, 2014 passed by Civil Judge, Junior Division,

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Aurangabad in Special Darkhast No. 12 of 2014 on Exhibit - 13.

3. Learned advocate Mr. Patel for the appellant submits that

as a matter of fact, two years have elapsed in prosecuting writ

petition bearing No.7274 of 2014 before High Court, which was

filed against the order on aforesaid exhibits in Special Darkhast

No. 12 of 2014. The matter was being prosecuted in good faith

and bona fide and, as such, the period is liable to be taken into

account pursuant to section 14 of the Limitation Act, 1963.

However, after withdrawal of the writ petition, application filed by

the appellant seeking condonation of delay bearing MARJI No.

200 of 2016 has been rejected without appreciating that two

years' period has been consumed in prosecuting a remedy before

High Court in writ petition. Learned advocate for the appellant

refers to the application and submits that the writ petition had

been filed under bona fide belief that there had been no other

alternate efficacious remedy save and except writ petition.

However, upon realizing that an appeal may be possible, the writ

petition came to be withdrawn, which had been allowed by the

High Court with a liberty to prosecute appropriate remedy. He

submits that it is indisputable position that the matter had been

lying before High Court for about two years and thus lapse of

two years ought to have been given treatment as is deserved

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pursuant to the provisions of the Limitation Act. The appellate

court has rather considered the matter on an altogether different

footing. It is being submitted that in view of indisputable position

about pendency of writ petition for about two years, the same

ought to have been given proper treatment and the appellate

court has failed in putting up proper construction as facts would

deserve. He thus, submits that the second appeal be allowed and

the appellant be allowed to prosecute appeal against order on

Exhibits-13, 15 and 19.

4. Mr. Deshmukh, learned advocate appearing for respondent

No. 2, however, contends that the whole prosecution of legal

proceedings, right from initiation, has been tainted with

malafides and has been aimed at frustrating the decree passed

by the trial court directing possession and recovery of amount.

He submits that a huge amount of Rs. 48 lacs and more along

with interest is to be recovered from the defendant. Over and

above the same, there are electricity dues of over Rs.18 lacs and

even payment of taxes is overdue. He submits that at the fag

end of 2011, some document is being shown to have been

executed inter se between the defendant and present appellant

with which the plaintiff has no concern whatsoever. Said

document is fraudulent one, created with a view to defraud

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legitimate execution of decree. He further refers to that even

writ petition before High Court was not diligently prosecuted,

rather, it was seen to that hearing of the matter is lengthened on

one count or the other, on one pretext or the other and one after

the other. At one point of time, the writ petitioner even had been

imposed with some liability of payment of amount. He further

refers to that even in this matter, while application for

condonation of delay has been rejected on 16 th January, 2017,

second appeal, challenging the same, has been moved only in

the month of March, 2017 in order to secure an interim relief

impressing upon that there is grave emergency.

5. Mr. Deshmukh, learned advocate adverts to that while

prosecution of writ petition has been contended to be bona fide

and in good faith, yet the appellant had refused to give evidence

and simply has filed a pursis that he does not want to lead

evidence and as such, has prevented the plaintiff from getting

him cross-examined. In the circumstances, learned advocate

submits that appreciation of the matter by the appellate court

has been immaculate and it does not deserve any interference.

6. Having heard as aforesaid, the question that will have to

be addressed in the matter appears to be -

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" Whether the stricter approach of the appellate court of refusing to condone the delay, in the facts and circumstances of the case, would require interception in the second appeal in order to do justice to the parties concerned ? "

7. Position emerges that the appellant, who claims to be in

possession of the decreed property, had approached the

executing court by lodging application (Objection Petition

Exhibit-13) on 27th June, 2014, which came to be rejected on

18th July, 2014, against which writ petition had been filed before

the High Court, which had been pending till 16 th June, 2016 and

thereafter, application MARJI No. 200 of 2016 had been filed,

which came to be decided under order dated 16 th January, 2017.

It does not appear to be a case wherein the respondent -

plaintiff is at dispute with regard to pendency of the writ petition

before High Court against order dated 18 th July, 2014 on Exhibit-

13 which was an objection petition.

8. Taking into account provisions of Civil Procedure Code,

particularly Order XXI, Rule 97 onwards, it would appear that

appeal would lie against order passed on objection petition.

Pursuant to the same, it appears that an attempt is being made

to lodge an appeal against order dated 18 th July, 2014, after

prosecuting writ petition for about two years. In the

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circumstance, pursuant to the liberty granted by the High Court

an appeal is being lodged along with an application for

condonation of delay. Although it is being contended by the

respondent - plaintiff that prosecution of the writ petition was

being lengthened at the instance of the appellant and he was

made to pay certain amount for the same, yet it is discernible

that the appellant who does not appear to be well versed in law,

appears to have went by the guidance he received in the

process. In the circumstances, prosecution of writ petition by

him may be erroneous, however, it would not ipso facto be said

that the same had not been bona fide or for that matter in good

faith. Pursuant to the liberty granted by the High Court,

appellant has made an attempt to lodge appeal along with

application for condonation of delay. Application for condonation

of delay has been rejected, for, the appellant had refrained from

entering into witness box. However, the same by itself, having

regard to facts and circumstances of the case, would not be an

indication of lack of bona fides or for that matter good faith, as it

does not appear to be a case that the appellant had been aware

of an appellate remedy been available and yet had not preferred

the same deliberately.

9. In the circumstances, although prosecution of the matter

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appears to be haphazard, yet taking into account aforesaid

position and considering that a contest on merits at the end

would sub-serve the cause of justice, it appears to be expedient

that the appellant may be given an opportunity to prosecute

appeal, which shall of be course subject to certain conditions.

10. The question so framed, accordingly stands answered.

11. The second appeal, as such, stands allowed. Order dated

16th January, 2017 passed on Exhibit-1 in MARJI No.200 of 2016

stands set aside and MARJI No.200 of 2016 stands allowed on

the condition that the appellant shall deposit a sum of

Rs.500,000/- (Rupees five hundred thousand only) in the

executing court within a period of four weeks from today. In case

of failure to deposit the amount referred to above, within

stipulated period of four weeks from today, order allowing the

second appeal and the MARJI and setting aside order impugned

in the second appeal shall stand recalled and the second appeal

shall be deemed to be dismissed without reference to the court.

Appeal, in the circumstances, if amount as aforesaid is

deposited, shall be proceeded with as early as possible and

decided within a period of four months from today. Necessary

paper work for making the appeal ready for hearing shall be

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prepared and submitted by the appellant within a period of four

weeks from today.

12. Civil application No.3450 of 2017 stands disposed of.

[SUNIL P. DESHMUKH, J.] drp/sa205-17