Shobha Mohanrao Gade vs Ahmednagar Municipal ...
2021 Latest Caselaw 10110 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                     35 CIVIL APPLICATION NO.14098 OF 2015
                               IN SAST/29517/2015


                               SHOBHA MOHANRAO GADE
                                      VERSUS
         AHMEDNAGAR MUNICIPAL CORPORATION, THROUGH ITS
                                   COMMISSIONER
                                         ...
                  Mr. M.B. Sandanshiv, Advocate for the applicant
                  Mr. V.S. Bedre, Advocate for the sole respondent
                                         ...

                                   CORAM :     SMT. VIBHA KANKANWADI, J.

                                   DATE :      02nd AUGUST, 2021.


PER COURT :



1              Present application has been filed for getting delay of 1565 days

caused in filing Second Appeal condoned.


2              Heard learned Advocate Mr. M.B. Sandanshiv for the applicant

and learned Advocate Mr. V.S. Bedre for the sole respondent.

3 Learned Advocate for the applicant submitted that applicant is

the original plaintiff, who had filed civil suit for extension of period of her

lease, that is, the suit was for seeking direction to the defendant for the

2 CA_14098_2015

extension of period of lease and for perpetual injunction in respect of

Municipal Shop (Gala) No.B/16 situated at Savedi Shopping Centre,

Ahmednagar. The suit came to be dismissed on 06.07.2006. She filed

Regular Civil Appeal No.251/2006 before learned District judge-1,

Ahmednagar. It came to be dismissed on 24.03.2011. The applicant intends

to challenge the said Judgment and Decree. The shop was still lying vacant

and was not allowed by the Municipal Corporation to anybody. Applicant

requested them to consider her request sympathetically, but it has not been

considered and the time was consumed in that exercise. Therefore, she could

not file the appeal within the limitation. She is interesting in running the

business. The delay in preferring the appeal is not intentional. He prayed for

condonation of the delay.

4 Learned Advocate for the respondent strongly opposed the

application and submitted that no reasonable, much less sufficient ground

has been shown for condoning the delay.

5 At the outset, perusal of the application would show that there is

absolutely no reason shown/pleaded explaining the huge delay of 1565 days.

The applicant has not come with a case that she was not aware of the

dismissal of her appeal. When absolutely no reason has been stated, there is

no question of condoning the delay.

                                              3                                  CA_14098_2015



6              Further, even if it is to be considered that the merits can be

considered, even at this stage, yet, it is to be noted that it was the case of the

plaintiff that defendant had allotted the said shop for running the business.

Pursuant to the tender notice she was given the lease and agreement was

entered into between the plaintiff and defendant on 23.08.1989. According

to her, she was put in possession after the necessary payments. According to

her, she had taken the shop for running a photo copy machine, but it was

damaged due to short circuit. According to the plaintiff, she started chicken

centre to earn livelihood in the suit premises. She further alleges that the

officers of the defendant compelled her to stop the said business of chicken

and threatened her to evict. The said lease had come to an end, but since the

defendant had not allowed her to operate, she prayed for extension of period

of lease. Both the Courts below have rightly held that there is no such legal

right in favour of plaintiff to claim extension of period of agreement. Any

agreement or contract has to be entered into as per the wish of both the

parties, by completing the stages of proposal, acceptance. It appears that the

defendant had served notice to her stating that since the period of agreement

has come to an end and she is in arrears of rent, she should vacate the

premises. It was very much indicative that the defendant had no intention to

continue the contract. Under such circumstances, no Court of law can

compel the defendant i.e. the owner of the property to lease out his/its

4 CA_14098_2015

property. The suit in the form it was presented itself was not maintainable,

and therefore, the suit was rightly dismissed, so also, the appeal was rightly

dismissed. No purpose would be served even after condoning the delay.

Later on, orally, it has been submitted by learned Advocate for the applicant

that the respondent-Corporation has taken the possession from the plaintiff.

Under such circumstance also the subject-matter of the suit does not exist

now. Under such circumstance, on this ground also the application deserves

to be dismissed. Accordingly, it is dismissed.

( Smt. Vibha Kankanwadi, J. )

agd