Janmohammad Babulal Pathan And ... vs Chagan @ Chaganmaharaj Gulabbhai ...
2021 Latest Caselaw 10114 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                     33 CIVIL APPLICATION NO.10807 OF 2015
                               IN SAST/14709/2015


                JANMOHAMMAD BABULAL PATHAN AND OTHERS
                                        VERSUS
    CHAGAN @ CHAGANMAHARAJ GULABBHAI SHAIKH AND OTHERS
                                           ...
                         Mr. A.S. Bajaj, Advocate for applicants
               Mr. N.V. Gaware, Advocate for respondent Nos.1 to 3
                                           ...

                                    CORAM :      SMT. VIBHA KANKANWADI, J.

                                    DATE :       02nd AUGUST, 2021.


PER COURT :



1              Present application has been filed for getting 373 days delay

condoned in filing Second Appeal.


2              Heard learned Advocate Mr. A.S. Bajaj for applicants and learned

Advocate Mr. N.V. Gaware for respondent Nos.1 to 3.


3              Learned Advocate for the applicants strongly submitted that the

First Appellate Court had not considered the facts and the dispute between

the parties properly, and therefore, the appellants, who were the applicants

before the First Appellate Court as well as who were the original plaintiffs

2 CA_10807_2015

had filed review petition before the same Court and it took about one year 12

days to decide. Ultimately the review has been rejected leaving no option for

the appellants to come before this Court. He submitted that the suit was for

partition, separate possession and injunction. It came to be partly decreed.

Relief of injunction was granted, however, relief of partition and separate

possession was rejected. When the said decree was challenged by the

original plaintiffs, then it ought to have been considered that the said

proceedings would be restricted to partition and separate possession. As

regards injunction, that is, the relief that was claimed and granted by the

learned Trial Judge, the defendants had not filed any separate appeal.

Inspite of this fact, the points for determination were not properly framed

and considered by the learned First Appellate Judge and it appears that the

First Appellate Judge proceeded to consider the appeal under the impression

that the appellants are the original defendants and it can be so seen from

para No.1 of the Judgment and accordingly by framing point for

determination the appeal was dismissed. It prompted the appellants to file

the review petition but it has been rejected. The delay is not deliberate, and

therefore, it deserves to be condoned.

4 Learned Advocate Mr. N.V. Gaware representing the respondent

Nos.1 to 3 strongly opposed the application and submitted that when the

3 CA_10807_2015

appellants were having knowledge that their review itself is not maintainable,

they ought not to have wasted the time by preferring review. There was no

confusion in the mind of the learned Judge of the First Appellate Court and

any way the review itself was not maintainable. Under such circumstance,

the appellants-applicants cannot seek benefit of inclusion of prosecuting the

matter before the First Appellate Court by way of review. The reasons given

are not reasonable, much less sufficient.

5 At the outset, it is to be noted that the total delay appears to be

373 days from the date when the Regular Civil Appeal No.138/2010 was

decided. However, in the meantime, the present appellants had filed Review

Petition No.1/2014 before the same Court. The First Appeal was filed on

15.01.2014 and the review petition was filed on 25.02.2014. The review

petition was decided on 07.03.2015 i.e. about one year 12 days. Time was

spent and if the benefit of prosecuting the review is given to the applicants,

then the delay might be only 8-10 days.

6 As aforesaid, the suit was for partition, separate possession and

injunction, which came to be decreed partly and only the relief of injunction

was granted. The First Appellate Court Judgment starts with sentence, "This

appeal has been preferred by appellants who were defendants in the Trial

Court in Regular Civil Suit No.1/2004." and then it is stated that the suit was

4 CA_10807_2015

for perpetual injunction has been decreed. The point that was framed for

consideration was "Whether the plaintiffs prove their ownership and

possession over the suit property and obstruction to it at the hands of

defendants ?" Thus, it is to be considered, as to whether the First Appellate

Court Judge was under confusion and has taken the wrong facts into

consideration, but that can be done only in the Second Appeal. But then it

appears that when the appellants were of the opinion that the First Appellate

Court Judge went on the basis of wrong facts in mind, it appears that it had

prompted them to knock the doors of the same Court by way of review

petition. That review petition has been rejected. Under such circumstance, it

can be said that it was a bona fide attempt on the part of the applicants to get

their dispute adjudicated. Therefore, definitely, when it is a bona fide

attempt, that period deserves to be exempted. Then it remains only 8-10

days delay and taking into consideration this duration and the points

involved, the said delay deserves to be condoned. Hence, the application

stands allowed and disposed of. The delay stands condoned. Registry to

verify and register the Second Appeal and place it for further consideration

on 17.08.2021 for admission.

( Smt. Vibha Kankanwadi, J. ) agd