Asha Shashikant Tarwade And Other vs Subhash Sonupant Bhingarkar ...
2021 Latest Caselaw 10842 Bom

                                        1       CA-105-20 in AOST-40700-2019.doc



             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                   CIVIL APPLICATION NO. 105 OF 2020
                                   IN
              APPEAL FROM ORDER STAMP NO. 40700 OF 2019

 Asha Shashikant Tarwade and others                     ... Applicants
          Versus
 1)     Subhash Sonupant Bhingarkar (deceased)
        through legal heirs
 1A) Sarojani Subhash Bhingarkar and others ... Respondents
                                    ....
 Mr. P. K. Phale, along with Mr. S. R. Wakale, Advocates for applicants
 Mr. A. M. Gholap, Advocate for respondent Nos. 8 to 14
                                    ....

                                    CORAM : R. G. AVACHAT, J.

DATED : 11th AUGUST, 2021

PER COURT :-

. This is an application for condonation of delay of little

over 190 days in preferring Appeal from Order dated 15.03.2019,

passed by the Ad-hoc District Judge-3, Ahmednagar, allowing the

appeal (Regular Civil Appeal No.85 of 2015) with remand of the suit

to the trial Court to decide it afresh.

2. Respondent Nos. 8 to 14 have strongly objected for

allowing the application. The submissions made by the learned

Advocate on their behalf are -

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The Appeal from Order, wherein the condonation of

delay is sought, is itself not maintainable; the applicants have not

given satisfactory explanation for condonation of delay; filing of

Appeal from Order twice, against the same order, is not permissible,

etc.

3. The original plaintiff had filed Special Civil Suit No.72 of

2006 for partition and possession of the suit properties. The suit was

decreed. The property sold by Defendant Nos. 2, 3 and 5, were

directed to be allotted to their share. The original Defendant Nos. 10

and 11 (Respondent Nos. 8 and 9 herein), filed appeal (Regular Civil

Appeal No.85 of 2015) against the judgment and decree passed in

Special Civil Suit No.72 of 2006. The First Appellate Court allowed

the said appeal, remanding the suit back to the trial Court. Perusal of

the judgment and order sought to be challenged in proposed Appeal

from Order indicates that the First Appellate Court held that only

one of the suit properties is the joint family property. Rest of the

properties have been held to be self acquired properties. The original

plaintiff, therefore, preferred Appeal from Order No.33 of 2019 to

this Court. Notice to the respondents therein was issued in the said

appeal. The applicants herein are said to have been served with the

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notice of the Appeal from Order No.33 of 2019. It appears that they

did not mark their appearance in response to the said notice.

4. The cause of action for filing the present application

accrued, since original plaintiff withdrew Appeal from Order No.33

of 2019. While the appeal was sought to be withdrawn, none of the

applicants herein were before the High Court. It further appears that

after withdrawal of the Appeal from Order, an application Exh.232

was moved before the trial Court, whereby the property purchased

by respondent Nos. 8 and 9, came to be withdrawn from the suit,

they were deleted from the suit. The actions regarding withdrawal

of the Appeal from Order and deletion of the properties and the

concerned Defendants (Respondent Nos. 8 and 9 herein) from the

suit, are obviously prejudicial to the interest of the applicants herein.

In the suit before the trial Court, the applicants herein have

supported the claim of the plaintiff in the suit. It being a suit for

partition and separate possession. These applicants-defendants were

no less than the plaintiffs in the suit. Had they been before this Court

while the Appeal from Order was sought to be withdrawn, they

could have urged for transposing them as appellants in the Appeal

from Order. The notice of the Appeal from Order served to the

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applicants, was in the nature of notice for admission of the appeal.

They had not been served with the notice for final hearing of the

Appeal from Order before the appeal was withdrawn. As such, their

non appearance in Appeal from Order before the High Court, cannot

be termed to be prejudicial to their interest.

5. It is reiterated that the facts of withdrawing the Appeal

from Order and some of the suit properties and the concerned

respondents from the suit, does indicate collusion between the

parties. After having realised the fact of withdrawal of the Appeal

from Order, the applicants herein, immediately applied for certified

copy thereof and preferred the Appeal from Order along with

application for condonatin of delay. The Appeal from Order was

withdrawn behind the back of the applicants herein. It, therefore,

cannot be said that the proposed Appeal from Order is hit by

res judicata.

6. For all the aforesaid reasons, the application for

condonation of delay deserves to be allowed. The same is, therefore,

allowed in terms of prayer clause (B).

[ R. G. AVACHAT, J. ] SMS

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