Nivrutti Baliram Divane Died ... vs Satyabhamabai Maruti Divane
2021 Latest Caselaw 11705 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                        CIVIL APPLICATION NO.10771 OF 2016
                                IN SAST/33997/2015


    NIVRUTTI BALBHIM DIVANE, DIED, HENCE DELETED, AND OTHERS
                                      VERSUS
                       SATYABHAMABAI W/O MARUTI DIVANE
                                         ...
                     Mr. A.N. Nagargoje, Advocate for applicants
                  Mr. M.B. Kolpe, Advocate for the sole respondent
                                         ...

                                   CORAM :        SMT. VIBHA KANKANWADI, J.
                                   RESERVED ON          :       13th AUGUST, 2021.
                                   PRONOUNCED ON :              24th AUGUST, 2021


ORDER :

1 Present application has been filed for getting delay of 1033 days

condoned in filing Second Appeal. Present applicants are the original

defendants, who want to challenge the Judgment and Decree passed by

learned Principal District Judge, Osmanabad in Regular Civil Appeal

No.246/2007 dated 22.10.2012, thereby reversing the Judgment and Decree

passed by learned Civil Judge Junior Division, Kallam in Regular Civil Suit

No.36/1988 dated 28.02.2007.

2              Heard learned Advocate Mr. A.N. Nagargoje for applicants and




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learned Advocate Mr. M.B. Kolpe for the sole respondent.

3 Learned Advocate for the respondent has strongly opposed the

application and submitted that the delay is huge and no sufficient reasons

have been given for condoning.

4 The applicants are contending that after the decision by the First

Appellate Court, they came to know about the said only in the month of

April, 2013 and accordingly made application for the certified copies. It is

contended that since the dispute was about consolidation record and the

appeal was allowed on the basis of consolidation record, they were under

confusion, as to whether they should proceed with the litigation before the

Consolidation Officer, which they had already filed or they would file the

Second Appeal before this Court. Ultimately they got legal advice in the

month of December, 2014 that they would be required to file the Second

Appeal. Thereafter, they had come to Aurangabad, handed over the papers to

the learned Advocate, however, thereafter the said Advocate joined the

Judicial Services and could not file their appeal. The applicants were not

aware about the said fact and they were under the impression that the appeal

might have been filed. They came to know in the last week of October, 2015

that the appeal has not been filed and their Advocate has joined the Judicial

Services. Then the applicants took the papers and gave it to the new

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Advocate, who took some time further to file the appeal. The delay is

unintentional. They have good case on merits.

5 The learned Advocate appearing for the applicants in nutshell

tried to say that there are contrary Judgments of the Lower Courts below and

the learned Principal District Judge, Osmanabad while deciding the First

Appeal has passed a very cryptic Judgment, which cannot be said to be

within the parameters of Order XLI Rule 33 of the Code of Civil Procedure,

1908.

6 Though the reasons, those have been tried to be given by the

applicants, are not convincing in a sense that many lacunas or time gap has

been left by them, however, it can be seen from the prima facie perusal of the

Judgment in the First Appeal that it proceeded merely on the basis of

consolidation record. Further, in the written statement itself the present

applicants had taken a contention that they have taken objection before the

Consolidation Officer, regarding the implementation of the consolidation

scheme. Under such circumstance, they would be justified in taking opinion,

as to whether they would go ahead with the litigation they have already filed

before consolidation officer or would take further steps to challenge the

Judgment and Decree passed by the First Appellate Court. But then after

they had handed over the papers to the Advocate, it is stated by them that

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their Advocate joined the Judicial Services. According to them, they were not

informed about the said fact by then said Advocate. But then there is gap

between December, 2014 to October, 2015, in which they had not made any

inquiry about the progress in their appeal. Yet, taking into consideration the

liberal approach as the rights in the immovable property have been agitated,

the delay deserves to be condoned. However, at the same time the

inconvenience that is caused to the other side is required to be well

compensated in terms of money. Hence, following order.

                                       ORDER


1                Application stands allowed and disposed of.


2                The delay caused in filing Second Appeal stands condoned,

subject to deposit of costs of Rs.30,000/- (Rupees Thirty Thousand only), in

this Court, within a period of one month from today.

3 After the amount is deposited the Registry to verify and register

the appeal.

4 The amount, so deposited, be given to the respondent.

( Smt. Vibha Kankanwadi, J. ) agd