Smt. Vatsalabai Wd/O Prabhakar ... vs Atul S/O Manilal Soni
2018 Latest Caselaw 213 Bom

 Judgment                                             1                                wp3619.17.odt




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 

                          NAGPUR BENCH, NAGPUR.


                           WRIT PETITION NO. 3619 OF 2017


 Smt. Vatsalabai Wd/o. Prabhakar Sonule,
 Aged about 70 years, Occu.: Business,
 R/o. C/o. House No.377, Zenda Chowk,
 Killa Road, Mahal, Nagpur. 
                                                                          ....  PETITIONER.

                                       //  VERSUS //

 Shri Atul S/o. Manilal Soni,
 Aged about 46 years, Occu.: Business,
 R/o. 3rd Floor, Yadeo Complex, 
 Killa Road, Mahal, Nagpur. 
                                                    .... RESPONDENT
                                                                     .
  ___________________________________________________________________
 Shri S.S.Sitani, Advocate for Petitioner. 
 Shri N.G.Jetha, Advocate for Respondent. 
 ___________________________________________________________________

                              CORAM : Z.A.HAQ, J.

DATED : JANUARY 09, 2018.

ORAL JUDGMENT :

1. Heard.

2. RULE. Rule made returnable forthwith.

3. In view of the prayer clause (a) as made in the writ petition, the

writ petition is liable to be dismissed, however, considering the interests of

justice, the petition is taken up for hearing without delving into the

technicalities.

Judgment 2 wp3619.17.odt

4. The respondent had filed civil suit praying for decree for

possession and other reliefs which is decreed by the judgment dated 27 th

July, 2016. The judgment and decree passed by the trial Court came to be

challenged by the petitioner before the District Court in appeal. As there was

delay of about 138 days in filing the appeal, the petitioner/ original

defendant had filed application praying for condonation of delay. This

application is rejected by the learned District Judge by the impugned order.

5. In this petition, the defendant has challenged the order passed

by the learned District Judge rejecting her application praying for

condonation of delay and also the judgment and decree passed by the trial

Court. It is relevant to state that the prayers seeking quashing of the

judgment and decree and the order rejecting the application praying for

condonation of delay are consolidated in the form of one prayer and

therefore, at one stage I felt that the writ petition should be dismissed

granting liberty to the petitioner to file fresh petition. However, after

examining the merits of the order passed by the learned District Judge, as I

am of the view that the delay of 130 days in filing the appeal is required to

be condoned and the learned District Judge should be directed to dispose the

appeal on merits expeditiously, I have proceeded with the matter. Granting

liberty to the petitioner to file fresh petition would have resulted in further

delay which may cause prejudice to the respondent, who is having decree of

eviction in his favour.

Judgment 3 wp3619.17.odt

5. The application filed by the petitioner praying for condonation

of delay is dismissed by the learned District Judge observing that the medical

certificate produced by the petitioner and the other facts on record show that

she was doing business during the relevant period and she was not suffering

from such illness which prevented her from filing the appeal. Though the

conclusion of the learned District Judge cannot be faulted with. In my view,

instead of pedantic view taken by the learned District Judge, a pragmatic

view ought to have been taken.

6. Considering the interests of justice, the following order is

passed:

i) The order passed by the learned District Judge on 27 th March, 2017 is set aside and the application filed by the petitioner praying for condonation of delay in filing the appeal is allowed.

ii) The appeal filed by the petitioner be registered.

iii) The petitioner and the respondent shall appear before the learned District Judge-17, Nagpur on 6 th March, 2018 at 11.00 a.m. and abide by further orders/ instructions in the matter.

iv) The learned District Judge shall dispose the appeal according to law till 18th April, 2018.

The writ petition is allowed in the above terms.

Judgment 4 wp3619.17.odt

The petitioner shall pay Rs.Twenty Five Thousand to the

respondent towards costs and produce receipt of it on record till the date of

appearance before the District Court.

JUDGE

RRaut..