Sayed Saidoddin Sayed Naser vs Mohammad Gulam Afzalkhan S/O ...
2021 Latest Caselaw 10108 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                     21 CIVIL APPLICATION NO.12382 OF 2015
                               IN SAST/33667/2012


                SAYED SAIDODDIN SAYED NASER
                           VERSUS
    MOHAMMAD GULAM AFZALKHAN S/O NURULLAKHAN AND ANR
                               ...
          Mr. A.B. Dhongade, Advocate for the applicant
                               ...

                                   CORAM :   SMT. VIBHA KANKANWADI, J.

                                   DATE :    02nd AUGUST, 2021.


PER COURT :

1              Present application has been filed for getting delay of 11 days

condoned in filing Second Appeal.


2              Heard learned Advocate Mr. A.B. Dhongade for the applicant.


3              At the outset, in normal circumstance, taking into consideration

the duration of the delay this Court would be definitely condoned it.

However, important point to be noted is that present applicant is the original

plaintiff and respondents are the original defendant Nos.1 and 2. Present

plaintiff had filed Regular Civil Suit No.45/2004 before Civil Judge Senior

Division, Basmatnagar for permanent injunction. It came to be decreed on

22.04.2009 against both the defendants. Defendant No.1 filed Regular Civil

2 CA_12382_2015

Appeal No.37/2009 before District Court, Basmatnagar. That appeal was

heard by learned District Judge-1, Basmatnagar and it was also allowed on

05.09.2012. The Judgment and Decree passed by the learned Trial Judge

was set aside and the said suit filed by the present applicant came to be

dismissed. Now, the original plaintiff wants to challenge the said decree in

Second Appeal. However, during the pendency of the present applications

when the notices were issued to the respondent No.1, it was returned

unserved, as reported to be dead on 23.03.2017. By order dated 21.04.2017

this Court had directed that the steps should be taken by 09.06.2017. They

were not taken, and therefore, by order dated 09.06.2017 one more chance

was given and it was directed that the steps should be taken within a period

of four weeks from that day, failing which the appeal would stand abated

against the said respondent, without further reference to the Court. That

order passed by this Court on 09.06.2017 is not yet got set aside by the

applicant. Respondent No.1 herein was the defendant No.1, against whom

also the present applicant-plaintiff had sought injunction. Now, in absence of

his legal representatives, this Court cannot proceed, and therefore, under this

circumstance, even though the delay was of only 11 days, it cannot be

condoned. Application, therefore, stands rejected.

( Smt. Vibha Kankanwadi, J. ) agd