Bombay High Court
Kamlabai Popat Domale And Anr vs Shahabai Bajirao Dimale (Witnor) ... on 2 December, 2021
Bench: V. V. Kankanwadi
sa-842-2016.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.842 OF 2016
WITH CA/3105/2017 IN SA/842/2016
KAMLABAI POPAT DOMALE AND ANR
VERSUS
SHAHABAI BAJIRAO DOMALE (WITNOR) AND OTHERS
...
Mr. V. R. Dhorde, Advocate for appellants.
Mr. R. S. Kasar, Advocate for respondent Nos.1 to 3.
...
CORAM : SMT. VIBHA KANKANWADI, J.
Reserved on : 04.10.2021
Pronounced on : 02.12.2021
ORDER :-
. Present appeal has been filed by original defendant Nos.1 and 5
challenging the judgment and order passed in Miscellaneous Civil
Application No.342 of 2012 by learned Adhoc District Judge-3,
Ahmednagar on 02.01.2016, whereby their application for condonation
of delay of 2236 days in filing Regular Civil Appeal came to be
dismissed.
2. Present respondent Nos.1 and 2 are the original plaintiffs, who
had filed Regular Civil Suit No.145 of 1999 before learned Civil Judge
Junior Division, Rahuri, Dist. Ahmednagar for partition and separate
possession of the suit properties, which were stated to be the joint family
sa-842-2016.odt
properties of the plaintiffs and defendants. The said suit proceeded ex-
parte and was decreed on 03.08.2006. It was declared that the plaintiffs
are having 1/2 share jointly in the joint family properties descried in
paragraph No.1 of the plaint. Directions were given for effecting
partition and separate possession thereof. The present appellants were
the original defendant Nos.1 and 5. They filed said Miscellaneous Civil
Application No.342 of 2012 for condoning the delay in filing Regular
Civil Appeal and it had been rejected. Hence, this second appeal.
3. Heard learned Advocate Mr. V. R. Dhorde for appellants and
learned Advocate Mr. R. S. Kasar for respondent Nos.1 to 3.
4. It has been vehemently submitted on behalf of the appellants that
in the application filed by present appellants before the first Appellate
Court, they had specifically contended that after they were served in the
suit, they have appeared through Advocate and sought time to file
written statement, however, thereafter, their Advocate on record had not
informed them about the progress in the suit. They made inquiry about
the suit on 05.10.2012 and came to know that the suit has been decided
ex-parte on 03.08.2006. If the Advocate has not done his duty, then it
has to be taken as a good ground to condone the delay. The learned
Advocate for the appellants submitted that, in fact, the original
sa-842-2016.odt
defendant No.4 - Yashodabai Bajirao Domale had filed Regular Civil Suit
No.121 of 1999 for partition and separate possession of the same suit
properties and it was dismissed by learned 2 nd Joint Civil Judge Junior
Division, Ahmednagar on 17.03.2003 on the ground that there is already
partition effected in respect of ancestral and joint family properties of
the plaintiffs and defendants. Even the sale-deed in favour of defendant
No.5 was challenged in that suit. By suppressing the fact of the said suit
and its dismissal, the present plaintiffs have obtained the decree by
fraud. In fact, the decision in Regular Civil Suit No.121 of 1999 to
which the plaintiffs in this case were parties would operate as res
judicata. In fact, the judgment and decree passed in Regular Civil Suit
No.145 of 1999 based on fraud is nullity, as the present plaintiff No.1
Shahabai Bajirao Domale had deposed in Regular Civil Suit No.121 of
1999 on behalf of her mother Yashodabai i.e. plaintiff therein stating
that there is already a partition in respect of joint family properties.
This fact was tried to be brought on record before the first Appellate
Court also, however, the application has been dismissed on the ground
that no sufficient much less reasonable ground has been shown to
condone the delay. Under the said circumstance, substantial questions
of law are arising in this case requiring admission of the second appeal.
It was further submitted that necessary pragmatic view has been taken
sa-842-2016.odt
by the first Appellate Court though reliance was placed on the decisions
of the Supreme Court wherein it has been held that there should be a
liberal approach, when the parties are rustic and illiterate.
5. Per contra, the learned Advocate appearing for respondent Nos.1
to 3 strongly opposed for admission of the second appeal on the ground
that whether the decree passed in Regular Civil Suit No.145 of 1999 is
based on fraud or otherwise, cannot be gone into in this second appeal.
The limited question, that can arise at this stage, is whether in Civil
Miscellaneous Application No.342 of 2012, the applicants had given
sufficient and reasonable ground to condone the delay of 2236 days in
filing the Regular Civil Appeal. The applicants had examined Shivaji
Vishwanath Parkhe i.e. appellant No.2, who in his examination-in-chief
itself has admitted that he as well as appellant No.1 had engaged
Advocate Mr. R. B. Pulate on 15.02.2001. He is simply saying that the
concerned Advocate did not informed them the next date. How many
times, he had gone to the Advocate for giving instructions or making
inquiry about the progress in the matter has not been stated at all. He
cannot just shift the liability on the shoulders of the Advocate, when he
himself was duty bound to approach his Advocate to know the progress
in the matter. He then says that he went to the Court on 05.10.2012 i.e.
after gap of 11 years to make inquiry regarding suit and then came to
sa-842-2016.odt
know that the suit was already decided on 03.08.2006 and, therefore,
the observation by the first Appellate Court is that the delay in the
present case is inordinate. It clearly shows that how the applicants were
negligent in defending the matter. No substantial questions of law are
arising in this case.
6. At the outset, it is to be noted that the second appeal challenges
the judgment and order passed in Miscellaneous Civil Application
No.342 of 2012, which was the application filed by the present
appellants for getting the delay of 2236 days condoned in filing Regular
Civil Appeal. The merits in the matter could not have been gone into.
Secondly, the pleadings as well as the evidence led by the present
appellants before the first Appellate Court would show that they were
duly served with the summons in the suit in the year 2001. They
appeared through Advocate before the Trial Court by filing Vakalatnama
at Exhibit-14 and application for adjourning the matter for filing written
statement at Exhibit-15 on 15.02.2001. Thereafter, it appears that they
never remained present in the matter before the Court. Now, they are
blaming that their appointed Advocate had not communicated next date
to them. In fact, it would be the prime duty of the client to be in touch
with the Advocate and to know the progress of the litigation from the
Advocate. No doubt, equally the Advocate has professional duty to
sa-842-2016.odt
inform the next date to the client. Applicants - appellants had not
examined Advocate Pulate to support their contention that he never
informed next date to them. Then, A.W. - Shivaji states that he made
inquiry with the Court on 05.10.2012 regarding the progress of the
matter and came to know that the suit was already decided on
03.08.2006. Thus, in his affidavit-in-chief itself, he is making it clear
that for about 11 years, he never made inquiry either with the Advocate
or with the Court employees about the progress in the matter. Any
Court cannot come to rescue of a negligent litigant. In his cross-
examination, it has come on record that even simultaneously revenue
proceedings were going on between the parties since 1999. The appeals
were still pending when he was cross-examined. Under this
circumstance, we can presume that the appellants had the knowledge as
to how a litigation progresses in any Court of law. At no point of time, it
appears that he had ever tried to bring it on record that already a matter
is filed and then decided by learned 2 nd Joint Civil Judge Junior Division,
Ahmednagar. In fact, even after the said decision on 17.03.2003 also, he
could have appeared before the learned Civil Judge Junior Division,
Rahuri, Dist. Ahmednagar and by placing the certified copy of the
judgment in that case, could have asked for the dismissal of Regular
Civil Suit No.145 of 1999, as this second suit was decided on
sa-842-2016.odt
03.08.2006. In other words, even after the decision of Regular Civil Suit
No.121 of 1999 on 17.03.2003, Regular Civil Suit No.145 of 1999 was
pending for about three years.
7. No doubt, the Courts are not required to take pragmatic view or
should be liberal in considering the applications for condonation of
delay, especially when the parties are illiterate and are rustic, but it has
also limitations. If the party itself is negligent and fails to make inquiry
for about 11 years regarding the progress of the suit, such negligent
party cannot be protected. The application for condonation of delay was
rightly rejected by the first Appellate Court. No substantial question of
law is arising in this case requiring admission of the second appeal. The
second appeal, therefore, deserves to be dismissed at the threshold.
Accordingly, it stands dismissed.
8. In view of dismissal of second appeal, Civil Application No.3105
of 2017 stands disposed of.
[SMT. VIBHA KANKANWADI, J.]
scm
