Bombay High Court
Piraji Manikrao Bangar vs Ratnamala Panditrao Gore And ... on 27 August, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
916 SECOND APPEAL NO.79 OF 2021
WITH CA/1766/2021 IN SA/79/2021
PIRAJI MANIKRAO BANGAR
VERSUS
RATNAMALA W/O PANDITRAO GORE AND OTHERS
...
Mr. V.D. Salunke, Advocate for the appellant
Mr. M.P. Kale, Advocate for respondent Nos.1 and 2
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 27th AUGUST, 2021.
ORDER :
1 Present appeal has been filed by original defendant No.2
challenging the rejection of his application for condonation of delay of 10
months and 9 days in filing First Appeal by the First Appellate Court i.e. in
Civil Miscellaneous Application No.71/2019 by District Judge-4, Parbhani on
21.12.2020.
2 Heard learned Advocate Mr. V.D. Salunke for the appellant and
learned Advocate Mr. M.P. Kale for respondent Nos.1 and 2. In order to cut
short, it can be said that they have argued in support of their respective
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contentions.
3 Present respondent Nos.1 and 2 are the original plaintiffs, who
had filed Regular Civil Suit No.47/2015 before learned Civil Judge Junior
Division, Pathri, Tq. Pathri, Dist. Parbhani for partition and separate
possession. The said suit came to be partly decreed on 18.04.2018. The
original defendant Nos.2 and 3 both intended to file First Appeal, however,
there was delay of 10 months and 9 days, therefore, they filed Civil
Miscellaneous Application No.71/2019 for condoning the said delay. They
had contended that the suit had proceeded ex parte against defendant No.3.
Defendant No.2 had filed written statement but could not adduce evidence.
It was contended that the original defendant Nos.2 and 3 were poor and
having no sufficient income to maintain their respective families. After filing
of written statement and after the receipt of summons, they went out of
station for doing labour work. Due to which, the Advocate could not
communicate the dates to them. In the month of March, 2019 the employees
of Revenue Department had come for measurement and that time they got to
know about the Judgment. It was contended that since they had gone out of
station to earn and could not establish contact with their Advocate, there was
said delay of 10 months and 9 days in preferring appeal. The delay was
unintentional and, therefore, that be condoned.
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4 The learned First Appellate Court heard the submissions on
behalf of both sides and took note of the fact that the learned Advocate
appearing before him for the applicants is the same, who had represented
original defendant No.2 in the suit and, therefore, inference has been drawn
that the reason given that the Advocate had not communicated them the
dates is unbelievable. This Court does not agree with the inference that has
been drawn. Merely, because now also the same Advocate is representing
them, that does not allow the Court to presume that the concerned Advocate
would have communicated the dates, when the matter was before the Trial
Court. Further, the learned First Appellate Court went on to observe that the
statement of the defendant No.2 that he went for labour work for livelihood
for his family is vague, as he has not clarified during which period he went to
do labour work. Important point to be noted is that the procedure appears to
have not been properly followed by the learned First Appellate Court. If we
peruse the roznama dated 02.12.2020, it is stated that arguments were heard
on Exh.26, which was the application for maintaining status quo and when
both the Advocates expressed that they would make final submissions on the
main application, the matter was adjourned for arguments. There appears to
be no opportunity given by the First Appellate Court to the applicants to lead
evidence. If the evidence is not allowed to be led to support the contentions
in the application, then the learned First Appellate Court was not justified in
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drawing inferences. Even if the Advocates would have stated that they are
ready to make final submissions; yet, there ought to have been some record
to show that the Court had given an opportunity especially to the applicants
to lead evidence to support their contention in the application.
5 Another fact to be noted is that when the parties are
agriculturists and they are coming from rural area and they appeared to be
illiterate also, under such circumstance, the application ought to have been
considered with liberal approach. The catena of Judgments of this Court as
well as Hon'ble Apex Court reiterate that the applications for condonation of
delay should be liberally considered. Here, the delay was of only 10 months
and 9 days. It could have been condoned by imposing costs.
6 Definitely, on the basis of the reasons stated above, substantial
question of law was arising, however, instead of framing the substantial
question of law and then keep the matter pending for years together, it can
be disposed of at this stage itself. It can be partly allowed. The delay that
has been caused in filing First Appeal can be condoned by imposing costs on
the present appellant. Hence, following order.
ORDER
1 Second Appeal is partly allowed.
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2 The Judgment and order passed in Civil Miscellaneous
Application No.71/2019 by learned District Judge-4, Parbhani on 21.12.2020
is hereby set aside.
3 The application for condonation of delay stands allowed.
4 Learned District Judge to register the appeal and take it for
disposal as per the procedure of law.
5 The appeal is expedited taking into consideration the fact that
age of respondent Nos.3 and 5 is more than 60 years.
6 Learned District Judge to dispose of the appeal as early as
possible, within a period of one year, from the receipt of writ of this order.
7 Appellant to deposit costs of Rs.40,000/- (Rupees Forty
Thousand only) before the First Appellate Court, within a period of one
month from today.
8 After the said amount is deposited, it be distributed to original
plaintiffs i.e. present respondent Nos.1 and 2, equally.
9 Civil application No.1766 of 2021 stands allowed and disposed
of.
( Smt. Vibha Kankanwadi, J. )
Donge
