Bombay High Court
Mr. Vilas Madhukar Kute vs Dattu Genu Yeole Decd Thru Lhrs And ... on 6 April, 2021
Bench: Anuja Prabhudessai
P.H. Jayani 06 WP10844.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10844 OF 2019
Vilas Madhukar Kute ....Petitioner
v/s.
Dattu Genu Yeole (since deceased
through legal heirs) :
Smt. Papabai Dattu Yeole and ors. .... Respondents
Mr. Hemant P. Ingle for the Petitioner.
Mr. Drupad Sopan Patil for Respondent Nos.1C and 1G.
CORAM: SMT. ANUJA PRABHUDESSAI, J.
DATED : 06th APRIL, 2021.
P. C. :-
. The Petitioner herein has assailed the order dated 20/08/2019
whereby learned Judge has dismissed the Application for
Condonation of Delay in fling an application under Order 9 Rule 13
of CPC.
2. The Respondent No.1 herein had fled a suit for specifc
performance against the Petitioner (Defendant No.10) and
Respondent Nos.2 to 10 were arrayed in the suit as Defendant Nos.2
to 9. The records reveal that all the defendants were duly served
with summons. The said suit was decreed ex-parte on 12.08.2015.
The Petitioner has sought to condone the delay in fling the
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Application mainly on the ground that he had learnt about the said
judgment only on 01.12.2016. The Petitioner claims that on receipt
of summons, he had approached Respondent Nos. 2 to 10 and
requested them to defend the suit. He further stated that
Respondent Nos.2 to 10 appointed one advocate Qazi and took his
signature on the vakalatnama. The Petitioner further claims that he
could not appear in the court as he was sufering from severe chest
pain and was hospitalized for a reasonably long time. He contends
that he learnt about the decree only when Respondent No.1 tried to
obstruct and interfere with his possession.
3. After enquiry, the learned Judge held that the Petitioner, who
was duly served with summons had engaged a lawyer on behalf of
other Defendants (Respondent Nos.2 to 9). The Trial Court further
held that the Petitioner was sick only for a period of fve days and
took note of the admission of the Petitioner that he was in contact
with his lawyer. The Trial Court therefore disbelieved the contention
of the Petitioner that he had learnt about the decree only on
01.12.2016. The Trial Court therefore dismissed the application
holding that the Petitioner had failed to make out sufcient cause to
condone the delay of about 11 months in fling the application.
P.H. Jayani 06 WP10844.2019
4. Mr. Hemant P. Ingle, learned counsel for the Petitioner submits
that the Petitioner had learnt of the ex-parte judgment only on
01/02/2016 and immediately thereafter, the Petitioner had fled an
Appeal before the District Court. He submits that since he was
advised that the proper course was to fle an Application under
Order 9 Rule 13, the Petitioner withdrew the Appeal and fled an
Application under Order 9 Rule 13 of CPC with an Application for
Condonation of Delay in fling the said Application.
5. Learned counsel for the Petitioner submits that the Petitioner a
bonafde purchaser and that he did not appear before the Trial Court
under a bonafde belief that his interest would be protected by the
other defendants i.e., defendant nos.1 to 9. He further submits that
the Petitioner was unwell and that was one of the reasons for not
appearing before the Court. He contends that the Petitioner has
made out sufcient cause for condoning the delay and in setting
aside the ex-parte decree. He has relied upon the decision of the
Apex Court in Robin Thapa vs. Rohit Dara 2019 AIR (SC) 3225 to
contend that ordinarily the matter should be adjudicated on merits.
6. Mr. Drupad S. Patil, learned counsel for the Respondents
contends that the Petitioner has made false statements in the
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Applications for condonation of delay as well as the application
under Order 9 Rule 13 of CPC. He submits that the contention of the
Petitioner that he was under a bonafde belief that his interest would
be protected by the other defendants is a palpably a false statement
as the records reveal that the Petitioner had engaged a lawyer and
had signed the vakalatnama in his individual capacity as well as a
Power of Attorney of the other defendants. He further submits that
the ground of sickness also does not constitute sufcient ground as
the material on record clearly indicates that the Petitioner was
admitted in the hospital only for a period of 05 days. He submits that
the Petitioner has not made out any case for not fling Application
within 30 days from the date of the Judgment and has further failed
to make out sufcient cause for not appearing before the Trial Court
despite due service of summons.
7. I have perused the records and considered the submissions
advanced by the learned counsels for the respective parties. The
short point for consideration is whether the Petitioner has made out
sufcient cause to condone the delay.
8. The only ground on which the Petitioner has sought to
condone the delay and set aside the ex-parte decree is that he was
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not aware of the ex-parte judgment till 01.12.2016. The reason for
being oblivious of the progress of the suit and the fnal outcome is
stated to be the assurance given by other Defendants (Respondent
Nos.2 to 9) to protect his interest and 'reasonably long period of
sickness'.
9. The records reveal that the Petitioner was duly served with
summons. He head put in his appearance through an Advocate, who
was engaged by him in his individual capacity and as an attorney of
the other Defendants. The Petitioner, who had put in his appearance
as an attorney of the other Defendants, cannot be heard to say that
the other Defendants had assured to protect his interest or that he
was under bonafde belief that they would protect his interest for a
reasonably long period. The second ground of ill health is equally
flimsy and false as the material on record indicates that the
Petitioner was hospitalised only for a period of fve days from
24/01/2011 to 28/01/2011 for heart ailment. The doctor, examined
by the Petitioner has stated that the Petitioner had not undergone
any surgery and had not visited the hospital for further treatment
after his discharge. Hence, the contentions that he was unwell for a
'reasonably long period' is patently false.
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10. The Petitioner has not explained the reasons for not appearing
before the Court either prior to or after his sickness. He admits that
the Advocate appointed by him resides in the same village and he
was in contact with his advocate. The fact that the Petitioner was
not aware of the progress of the suit despite being in contact with
his advocate, only indicates that he was not vigilant and his approach
was casual.
11. There can be no dispute that the approach of the Court while
dealing with application for condonation should be pragmatic and
justice oriented. It is also well settled that the expression 'sufcient
cause' should be interpreted liberally as to advance substantial
justice. However, though the expression 'sufcient cause' is elastic,
the concept of liberal approach cannot be stretched to an extent as
to construe that every concocted or false or flimsy explanation as
sufcient or reasonable explanation. Adopting such approach, and
condoing the delay in a routine and casual manner, as a matter of
judicial generosity even when the party is not vigilant or is negligent
and irresponsibly inactive, would not only set wrong signal and set
bad principle but would prejudicially afect a valuable right accrued
to the other party. Such right cannot be lightly interfered with and
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compensated by imposing costs.
12. The Petitioner has lost his right to have the matter
considered on merits solely due to his negligence and inaction for a
long time. Learned Trial Judge was perfectly justifed in not
accepting concocted, false and flimsy grounds as 'sufcient cause'
and consequently dismissing the application fled by a lethargic
litigant. Hence, the impugned order does not warrant interference.
The Petition stands dismissed.
13. An amount of Rs.25,000/- deposited pursuant to the order
dated 19/12/2019 of this Court, be refunded to the Petitioner.
(SMT. ANUJA PRABHUDESSAI, J.)
