Bombay High Court
Trivenabai Punjabrao Dinde And ... vs Vijay Haribhau Pundge on 2 August, 2021
Bench: V. V. Kankanwadi
ca-795-2014.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
26 CIVIL APPLICATION NO.795 OF 2014
IN SAST/34084/2013
TRIVENABAI PUNJABRAO DINDE AND OTHERS
VERSUS
VIJAY HARIBHAU PUNDGE
...
Advocate for Applicants : Mr. Patil Hanmant V. & Mr. A. N. Patale
Advocate for Respondent : Mr. S V Natu
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 02.08.2021
ORDER :-
. Present application has been filed for condoning the delay of 1734
days in filing second appeal.
2. Heard learned Advocate Mr. H. V. Patil and Mr. A. N. Patale for
applicants and learned Advocate Mr. S. V. Natu for the respondent.
3. It has been vehemently submitted on behalf of the applicants that
the applicants are intending to file second appeal challenging the
judgment and decree dated 12.12.2008 passed by the learned District
Judge-11, Hingoli in Regular Civil Appeal No.53 of 2000, whereby the
appeal filed by the present respondent came to be allowed. The learned
first Appellate Court had reversed the judgment and decree dated
ca-795-2014.odt
02.09.2000 in Regular Civil Suit No.73 of 1991 passed by learned Civil
Judge Junior Division, Kalamnuri. The said suit was for specific
performance of the contract filed by the present respondent. It was
dismissed, however, it came to be decreed in appeal. The applicants are
the daughters of the original land owner and original defendant No.1.
In fact, after marriage, the applicants are residing with their husbands at
respective villages. There is no male member who is looking after the
suit land. The applicants are having no knowledge of legal proceedings
and pendency of appeal before the learned District Court. They came to
know about the same when they received the notice of execution of the
sale deed. They had collected the certified copies thereafter. Their
Advocate had also not communicated the decision in the appeal to them.
Therefore, there is good ground to condone the delay. Substantial
questions of law are arising in the second appeal.
4. Per contra, learned Advocate for the respondent strongly opposed
the application submitting that the ground that has been shown by the
applicants cannot be said to be sufficient much less reasonable. There is
inordinate delay. Applicants had every knowledge about the pendency
of the appeal, especially present applicant Nos.1 and 2. They were
majors when they had filed the appeal. The learned Trial Judge on his
surmises and conjectures going against the evidence that was led by the
ca-795-2014.odt
original plaintiff had dismissed the suit, however, entire evidence has
been properly considered and appreciated by the learned first Appellate
Judge. No substantial questions of law are arising in this case as the
plaintiff had proved the execution of agreement to sale by the original
owner in his favour. Since it was agreement to sale an agricultural land
i.e. immovable property, the discretion of grant of specific performance
has been properly exercised.
5. At the outset, it is to be noted that even before the first Appellate
Court, the respondents were the only persons i.e. ladies, who were the
respondents. Out of them, respondent Nos.2 and 3 i.e. present applicant
Nos.1 and 2 were major. They were represented by Advocate. Except
their statement that the decision in the appeal was not communicated
them by their Advocate, there is nothing. It cannot be presumed that
the Advocate would not have discharged his professional duty. The
appeal was decided on 12.12.2008 and the applicants are coming with
the case that they came to know about it only in the year 2013. In fact,
they have intentionally not given the date of knowledge. They have
stated that when applicant No.1 received the notice about the execution
of the sale deed through Court, they got the knowledge and then applied
for the certified copies on 13.11.2013. Therefore, there is suppression
of fact as to when they had received notice in the execution proceedings.
ca-795-2014.odt
Further, along with the affidavit-in-reply, the copy of the service report
has been produced by the respondent. It shows that applicant No.1 -
Trivenabai was served with the notice on 28.08.2012, applicant No.2 -
Kanchan was served on 27.12.2012, applicant No.3 - Mangalbai was
served on 08.10.2012 and applicant No.4 - Maltibai was served on
10.01.2013. These are the numbers with the execution Court, but they
are in respect of present applicants. Therefore, when applicant No.1,
who appears to be defendant No.2 in the execution proceedings, was
served on 28.08.2012, yet there is absolutely no reasonable ground
shown as to why she was not approached the Advocate prior to
07.12.2013. This inordinate delay even after the knowledge of about
one to one year three months approximately has not been explained by
the applicants and, therefore, it cannot be said that they have given
reasonable ground much less sufficient to condone the delay. Hence, the
application stands rejected.
[SMT. VIBHA KANKANWADI, J.]
scm
