Bombay High Court
Ramdas S/O Vithoba Mangar vs Tukaram S/O Donuji Mangar ... on 3 August, 2021
Bench: S. M. Modak
cas.958.19 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Civil Application [CAS] No.958 of 2019
in
Second Appeal St. No.16487 of 2019
Ramdas Vithoba Mangar
vs.
Tukaram Donuji Mangar [Dead] through L.Rs. & others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Ms. M.B. Dodani, Advocate for the Applicant/Appellant.
Shri A.P. Thakare, Advocate for Respondent Nos .1(A) to 1(D) & 2 to 4.
CORAM : S.M. MODAK, J.
RESERVED ON : 13th JULY, 2021.
PRONOUNCED ON : 3rd AUGUST, 2021.
Hearing was conducted through Video
Conferencing and the learned Counsel agreed that the
audio and visual quality was proper.
02] Not in touch with the Advocate representing
the appellant before the First Appellate Court and illness
of daughter-in-law and son of the appellant were offered
as sufficient reasons for not filing the appeal in time.
The First Appellate Court dismissed the appeal on
08/11/2016 whereas, this application is filed after a gap
of 907 days i.e almost more than 2½ years.
03] I have heard learned Advocate Ms Dodani for
the applicant and learned Advocate Shri Thakare for all
the respondents. He has chosen to argue the matter
without filing reply.
04] The respondent nos. 1 and 2 are the owners
of the land whereas respondent nos. 3 and 4 are the
purchasers. Whereas the suit is filed by the present
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applicant for declaration and specific performance of
the agreement for sale. The trial Court dismissed the
suit on 28/10/2005 whereas, the First Appellate Court
dismissed the appeal on 08/11/2016.
05] About illness of daughter-in-law and the son,
photocopies of medical documents are filed. The
respondents denied the illness and treated the medical
documents as prepared for the purpose of filing of suit
by the appellant. Photocopy of discharge card of Asha
Yogesh Mangar issued by the Government Hospital,
Gadchiroli is filed. Whereas, C.T. Scan of brain of
Yogesh Mangar, son of the appellant, issued by
Dhanwantari Hospital is also filed. I do not find that
the signatories of these documents will prepare them
fradulently in order to help the appellant. The
discharge card of Asha Mangar bears the date
20/04/2017 whereas, C.T. Scan Report bears the date
12/04/2018. Whereas, the impugned judgment came to
be passed on 08/11/2016.
06] It is true that there are certain lacunae in
these documents. That is to say, there is no reference
of follow up by the two ill persons in those medical
papers. But I do not find those reasons offered with
mala fide intention.
07] The Court can take judicial note of the fact
that in the appeal proceedings, the presence of the
litigant is not required. The applicant is the resident of
Jibgaon, Taluka Saoli, District Chandrapur, a remote
place from the Chandrapur headquarter. For litigant
residing in rural village is having short of means even to
contact directly with the Advocate and to plead his case
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cas.958.19 3/4
before the Appellate Court. He has to rely upon the
local Advocate. This has happened in this case also. It
is not the case wherein the applicant was in direct
contact with the Advocate representing him before the
First Appellate Court. No doubt any supporting affidavit
of any Advocate is not filed. But considering the
circumstances, I am not inclined to insist for that. The
applicant got knowledge about dismissal of the appeal
(since November 2016 to March 2017) from his local
Advocate. Thereafter, due to illness of two members of
his family, he could not take steps. It is but natural for
the applicant to give more attention and priority to ill
members of his family. Once he had come out of the
worry, he has approached the District Court in July,
2019 and got the certified copies.
08] So for the above discussion, I find the reasons
offered are sufficient enough to exercise the discretion
in his favour. The respondents need to be compensated
by imposing the costs. I quantify it to Rs. 5000/-.
Hence, the order :-
ORDER
(a) The delay of 907 days in filing the Second
Appeal is condoned.
(b) It is condoned subject to payment of costs
of Rs.5,000/- to the respondents.
(c) Respondent nos.2, 3 and 4 to get costs of
Rs.1,000/- each and respondent nos. 1(A) to
1(D) will get costs of Rs.2,000/- to be divided
equally amongst them.
cas.958.19 4/4
(d) The costs to be paid within the period of one
month.
(e) The respondents through learned Advocate
waives notice.
(f) Copies of memo of appeal and documents be
supplied to the respondents.
(g) The application is disposed of.
(h) The appeal be listed on 30 th August, 2021 for
admission.
JUDGE
*sandesh
