Sau. Pramilatai W/O. Sureshrao ... vs Suresh Ganpatrao Kavathale And ...
2018 Latest Caselaw 790 Bom

 Judgment                                              1                                  wp102.16.odt




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 

                          NAGPUR BENCH, NAGPUR.


                               WRIT PETITION NO. 102 OF 2016

 Sau. Pramilatai w/o. Sureshrao Bijwe,
 Aged about 53 years, Occu.: Household work
 & Agriculturist, Resident of Shahar Sawaipura,
 Achalpur, Tq. Achalpur, District : Amravati
 (At present R/o. Opp. Nav Maharashtra High 
 School, Pimpari-Pune)
                                                                           ....  PETITIONER.

                                        //  VERSUS //


 1. Suresh Ganpatrao Kavathale, 
    aged about 58 years, Occu.: Retired,
    R/o. Abbaspura, Achalpur City, 
    Tahsil : Achalpur, District : Amravati.

 2. Arun Ganpatrao Kavathale, 
    Aged 30 years, R/o. Raipura,
    Achalpur, Tahsil : Achalpur, 
    District : Amravati. 

 3. Devanand Ganpatrao Kavathale,
    aged 27 years, R/o. Raipura, 
    Achalpur City, Tahsil : Achalpur, 
    District : Amravati. 

 4. Shankar Ganpatrao Kavathale,
    aged 24 years, R/o. Raipura, 
    Achalpur City, Tahsil : Achalpur, 
    District : Amravati. 

 5. Alka Ganpatrao Kavathale,
    aged 27 years, Occu.: Labourer,
     R/o. Raipura, Achalpur City, 
    Tahsil : Achalpur, District : Amravati.

 6. Sharad Mohanlal Bhansali,
    aged about 45 years, Occu.: Business
    and Agriculturist, Resident of Achalpur, 
    Tq. : Achalpur, District : Amravati.  
                                                                        .... RESPONDENTS
                                                                                      .


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  Judgment                                             2                                  wp102.16.odt




  ___________________________________________________________________
 Shri D.L.Dharmadhikari, Advocate for Petitioner. 
 Shri Tushar Darda, Advocate for Respondent No.6. 
 ___________________________________________________________________

                              CORAM : Z.A.HAQ, J.

DATED : JANUARY 22, 2018.

ORAL JUDGMENT :

1. Heard.

2. RULE. Rule made returnable forthwith.

3. Against the judgment and decree passed by the trial Court the

petitioner had filed First Appeal No.449 of 2006 which was admitted by this

Court. On listing of the appeal under objection that private paper book is not

filed by the appellant, this Court had passed conditional order on 29 th

January, 2009 directing that if the paper book was not filed till 13 th April,

2009 and cost for delay were not deposited, the appeal would stand

dismissed without reference to the Court.

4. The contention of the petitioner is that because of some

inadvertent mistake of his clerk, the private paper book could not be filed

and the amount of costs could not be deposited within stipulated time and

therefore, the appeal stood dismissed. However, it was not noticed by the

learned advocate for the petitioner/ appellant. On getting knowledge of

Judgment 3 wp102.16.odt

dismissal of the appeal, application was filed on 2 nd May, 2013 under Order

41 Rule 19 of the Code of Civil Procedure praying for re-admission of the

appeal and when the application was pending, the appeal was transferred to

the District Court on 15th May, 2013 and then the application is heard by the

learned District Judge and is dismissed by the impugned order.

5. In the impugned order, the learned District Judge has recorded

that there is delay of 3 years 11 months and 19 days in filing the application

under Order 41 Rule 19 of the Code of Civil Procedure, the delay is not

properly explained and therefore, the application cannot be allowed.

6. After considering the matter, I am of the view that the learned

District Judge should have taken a pragmatic view and should have

condoned the delay and considered the application filed by the petitioner

under Order 41 Rule 19 of the Code of Civil Procedure on merits.

Hence, the following order:

          i)      The impugned order is set aside.

          ii)     The delay in filing application under Order 41 Rule 19 of the

                  Code of Civil Procedure is condoned.

          iii)    The learned District Judge shall consider the application filed by

the petitioner/ appellant under Order 41 Rule 19 of the Code of

Civil Procedure on merits.

Judgment 4 wp102.16.odt

The petitioner and the respondent No.6 shall appear before the

learned District Judge No.1 Achalpur on 5th March, 2018 at

11.00 a.m. and abide by further orders/ instructions in the

matter.

The petition is allowed in the above terms. In the

circumstances, the parties to bear their own costs.

JUDGE

RRaut..