Bombay High Court
Dadarao Appaji Kotkar Died Lrs ... vs Limbaji Subhanji Wadekar Died Lrs ... on 4 August, 2021
Bench: V. V. Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.5422 OF 2016
IN SAST/4927/2016
DADARAO APPAJI KOTKAR DIED THR. HIS LRS PRAYAGBAI DADARAO
KOTKAR AND ORS
VERSUS
LIMBAJI SUBHANJI WADEKAR DIED THR HIS LRS ANANDA LIMBAJI
WADEKAR AND ORS
..........
Mr. B. S. Chondhekar, Advocate for applicants.
Mr. B. S. Kudale, Advocate for respondent Nos.1A to 1C.
..........
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 04.08.2021
ORDER :-
. Present application has been filed for getting the delay of 4744
days condoned in filing second appeal. Present applicants are the
original defendants and present respondents are the original plaintiffs
who had filed Regular Civil Suit No.126 of 1985 for recovery of
possession of the suit property and mesne profit. The said suit came to
be dismissed by learned Joint Civil Judge Junior Division, Hingoli on
26.02.1992. Present respondents - original plaintiffs challenged the
said judgment and decree in Regular Civil Appeal No.19 of 1992. It was
heard by learned Additional District Judge - Hingoli and the said appeal
came to be allowed. The suit was decreed. Plaintiffs was allowed to
recover the possession of encroached area i.e. from defendant No.2 to
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the extent of 3 Acres, defendant No.3 to the extent of 4 Acres,
defendant No.4 to the extent of 6 Acres and from defendant No.5 to the
extent of 5 Acres from land Survey No.65 of village Bhankheda, Tq.
Hingoli, Dist. Hingoli. It was directed that defendant Nos.2 to 5 to hand
over the possession to the plaintiff within a period of three months from
the date of the order.
2. Heard learned Advocate Mr. B. S. Chondhekar for applicants and
learned Advocate Mr. B. S. Kudale for respondent Nos.1A to 1C.
3. It has been vehemently submitted on behalf of the applicants that
after the decision of the first appeal, they met the Advocate at
Aurangabad for preferring the first appeal in the month of January, 2004
and entrusted the work of preparation of the appeal. Later on, they
came to know that the concerned Advocate was elevated to the Bench of
this Court and, therefore, the appeal could not have filed in time for
want of Vakalatnama etc. Thereafter, after receipt of the intimation of
the said fact to the applicants, they had entrusted the appeal to junior
Advocate from same office, however, the said junior Advocate had not
filed the appeal, but still the applicants were under the impression that
their appeal has been filed and it is pending. The applicants were
served with summons in the execution proceedings and then they made
enquiry about the pending appeal. When they came to know that no
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such appeal have been filed, therefore, once again they collected
documents and now they had approached this Court by way of second
appeal. The delay is unintentional. They were under the bona fide
belief that their appeal has been filed. Vital rights are involved in
respect of immovable property and, therefore, the delay deserves to be
condoned.
4. Per contra, the learned Advocate appearing for respondent Nos.1A
to 1C submitted that the delay is huge and inordinate. Whatever reason
has been tried to be given is very much vague. The applicants were
totally negligent and the Courts cannot help negligent party. The
respondents have been kept away from the fruits of the decree for a
considerable time, therefore, they do not deserve any sympathy.
5. At the outset, it is to be noted that the delay of 4744 days is not
only huge, but also inordinate. Even if meticulous explanation of day to
day delay is not expected, yet, it should be reasonable. Interesting point
to be noted is that according to the applicants, they had handed over the
papers for preparation of second appeal to the Advocate in the month of
January, 2004. It is not clearly mentioned as to when the concerned
Advocate was elevated to the Bench of this High Court, but then the
applicant themselves say that after the receipt of the intimation i.e. in
respect of elevation of the concerned Advocate, they have stated that
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they had entrusted the appeal to the junior Advocate from the same
office. Intentionally again the year is not stated. Even if we give
concession of one or two years from January, 2004, yet that would come
to around 2006 when they would have handed over the appeal to the
junior Advocate. The notice/summons by the executing Court was
received by them and again they have not given the date of the notice
when they received that information. But in his affidavit in reply,
Ananda Limbaji Wadekar states that they had filed Regular Darkhast in
the year 2014 and the notice of the said Darkhast was served on the
applicants on 22.01.2016. Therefore, waiting for the intimation by the
Advocate regarding filing of the appeal for about 10 years atleast cannot
be said to be a diligent act. Further, when they had the knowledge that
the decree has been granted and they are directed to hand over the
possession of the properties to the plaintiff, then such negligence or
lethargy is unacceptable. Courts will not help such negligent litigants.
The reason whatever has been stated is not at all sufficient much less
reasonable and therefore, discretion also cannot be exercised in favour
of the applicants.
6. Hence, application stands rejected.
[SMT. VIBHA KANKANWADI, J.]
scm
