Shri. Laxman Gangadhar Kadali vs Kaushabai Dada Kadali (Deceased, ...
2018 Latest Caselaw 522 Bom

VGY                                 1               Judg.41.SA.231.17.doc



IN THE HIGH COURT OF JUDICATURE AT BOMBAY
     CIVIL APPELLATE SIDE JURISDICTION

                   SECOND APPEAL NO. 231 OF 2017
                               WITH
                 CIVIL APPLICATION NO. 1433 OF 2016


        Shri Laxman Gangadhar Kadali
        Age 60 Years, Occu. Agriculture,
        R/at. Ghodewadi, Taluka-Dindori,
        District-Nashik.                          ... Appellant
                                                   (Orig.Defdt.No.2)

                         Versus

1]      Kaushabai Dada Kadali (Deceased)
        (Deleted as per order dated 11/08/2016
        passed in W. P. Stamp No. 24116 of 2015

2]      Pandurang Dada Kadali
        Age 70 Years, Occu. Agriculture,

3]      Sukdeo Dada Kadali
        Age 62 Years, Occu. Agriculture
        Above No. 1 to 3 R/at : Ghodewadi
        Taluka-Dindori, District-Nashik.

4]      Damodhar Dada Kadali
        Age 51 Years, Occu. Agriculture
        R/at. Kasabe Sukene, Taluka-Niphad
        District-Nashik.

5]      Khandu Dada Kadali
        Age 35 Years, Occu. Agriculture,




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 VGY                                    2                 Judg.41.SA.231.17.doc



6]      Jagannath Murlidhar Kadali
        Age 70 Years, Occu. Agriculture,

7]      Balwant Murlidhar Kadali
        Age 60 Years, Occu. Agriculture,

8]      Jijabai Balwant Kadali
        Age 45 Years, Occu. Agriculture,
        Above No 5 to 8 R/at. Ghodewadi,
        Taluka-Dindori, District-Nashik. ...             Respondents
                                                   (Orig.Pltffs.No.1 to 8)
9]      Shri Ramchandra Gangadhar Kadali
        Age 70 Years, Occu. Agriculture,
        R/at. Ghodewadi, Taluka-Dindori,
        District-Nashik.                 ...               Respondent
                                                       (Orig.Defdt.No.1)

                             =====
Mr. Girish Agrawal for Appellant.
Mr. Sham Walve I/by Swapnil V. Walve for Respondent Nos.2 to 8.
Mr. Ashok S. Pandire for Respondent No.9.
                             =====

                                    CORAM : N. M. Jamdar, J.
                                    DATE : 16 January, 2018.

JUDGMENT

. Heard the learned Counsel for the parties.

2. Admit, on the following substantial question of law :

"Whether the learned District Judge exercised his judicial discretion in lawful manner while dismissing the

VGY 3 Judg.41.SA.231.17.doc

Application filed by the Appellant for condonation of delay of 118 days in filing First Appeal ?"

3. The Second Appeal is taken up for final disposal forthwith. The learned Counsel for Respondents waive service. Paper Book is dispensed with.

4. The Respondents/Plaintiffs filed a Regular Civil Suit No. 132 of 2011 in the Court of Civil Judge, Junior Division, Pimpalgaon (Baswant). The suit was filed for possession of the suit property and for permanent injunction. The learned Civil Judge, Junior Division, Pimpalgaon decreed the suit by judgment and order dated 7th January 2014. The Appellant thereafter filed a First Appeal in the District Court, Niphad along with an application for condonation of delay, on 3rd July 2014. This application was rejected by the learned District Judge by the impugned judgment and order dated 11th August 2015.

5. The application was filed for condonation of delay stating that the Appellant was under the impression that in view of certain notifications issued by the High Court, the jurisdiction of the Court at Pimpalgaon (Baswant) was being transferred. In the application it was stated that, both the Advocate and the Appellant being under this impression, did not follow the proceedings immediately and there was a delay of 118 days. The learned District

VGY 4 Judg.41.SA.231.17.doc

Judge found reason given by the Appellant was not cogent and dismissed the application and consequently the Appeal.

6. Though it is within the discretion of the court whether to condone the delay or not, the discretion has to be exercised judiciously. Dismissing the application or allowing the same in toto are not the only options available with the court and the court can always, in given circumstances balance the equities by imposing conditions. The learned District Judge has not explored this option at all. It is not that the case put up by the Appellant was entirely frivolous and there was no notification issued by the High Court. The notification was issued for transfer of jurisdiction in the Taluka, but only that the present proceedings were not specifically transferred. The law laid down by the Apex Court has also made a distinction between delay of gross nature and delay of short duration and has laid down that the approach of the court in these two different types of delays has to be different. The delay of 118 days could not be termed as a gross delay, and therefore, the learned District Judge ought to have considered the option of imposition of costs.

7. Therefore, the question of law framed will have to be answered in favour of the Appellant. Accordingly, the Second Appeal is allowed.

VGY 5 Judg.41.SA.231.17.doc

8. The judgment and order passed by the learned District Judge, Niphad dated 11th August 2015, is set aside. Civil Misc. Application No. 31 of 2014 is allowed. First Appeal filed by the Appellant stands restored to file.

9. This order is subject to the Appellant paying costs of Rs. 10,000/- to the Respondents/Plaintiffs within a period of four weeks from today.

10. The amount to be deposited in the District Court, Niphad and the Respondents will be entitled to withdraw the same.

11. Parties to appear before the learned District Judge, Niphad on 20th February 2018.

12. Registry to send the writ to the learned District Judge, Niphad forthwith, and also send a communication by way of an e-mail, in addition.

(N.M. Jamdar, J.)