Namdeo Govind Shinde And Ors vs Ramchandra Shrirang Jagtap And ...
2021 Latest Caselaw 2793 Bom

                                                                          21 ia 206-21



                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION
Sneha N.
Chavan                                   INTERIM APPLICATION NO. 206 OF 2021
Digitally signed
                                                          IN
by Sneha N.
Chavan
                                         SECOND APPEAL (ST) NO. 1252 OF 2021
Date: 2021.02.12
18:20:35 +0530
                   Namdeo Govind Shinde & Ors.              .. Applicants
                        V/s.
                   Ramchandra Shrirang Jagtap & Ors.        ..Respondents
                                                    ----
                   Mr. Dilip Bodake for the Applicants.
                   Mr. Uday Warunjikar for the Respondent Nos.1 to 3.
                                                    ----
                                                  CORAM : C.V. BHADANG, J.

                                                  DATE    : 11th FEBRUARY, 2021

                   P.C.

1. By this application, the applicants (original defendant nos. 1

to 3 and 10) are seeking condonation of delay of 5 years and 43

days in filing a Second Appeal.

2. The brief facts necessary for the disposal of the application

may be stated thus:

That the respondent Nos. 1 to 3 filed Regular Civil Suit No.

170 of 2009 against the applicants and others, for removal of

encroachment, possession and mesne profits etc. The learned Civil

Sneha Chavan page 1 of 8 21 ia 206-21

Judge Junior Division at Baramati by a Judgment and Decree dated

27.01.2011, decreed the suit, directing the original defendants to

remove the encroachment in land gut No. 389 to the extent of 19 R

and to deliver vacant possession of the same to the respondent nos.

1 to 3 (original plaintiffs).

3. It appears that feeling aggrieved, the appellants (original

defendant nos. 1 to 3 and 10) challenged the same in Civil Appeal

No. 36 of 2011 before the learned District Judge at Baramati.

4. The learned District Judge by a Judgment and Decree dated

24.08.2015 has dismissed the appeal, thereby confirming the

Judgment and Decree passed by the Trial Court. A perusal of the

record shows that a measurement map at Exhibit 26 is directed to

form the part and parcel of the said decree. It is undisputed that the

respondents/decree holders have filed an execution application, in

which a warrant of possession has been issued.

5. It is in these circumstances, that the present application is

filed for condonation of delay, in filing the Second Appeal

challenging the Judgment and Decree passed by the first Appellate

Court.

     Sneha Chavan                                              page 2 of 8
                                                       21 ia 206-21

6. I have heard Mr. Dilip Bodake, the learned counsel for the

applicants and Mr. Uday Warunjikar, the learned counsel for the

respondent nos. 1 to 3. With the assistance of the learned counsel

for the parties, I have gone through the record.

7. Mr. Bodake, the learned counsel for the applicants has

submitted that the condonation is sought on the ground that the

applicants, are labourers and illiterate. It is submitted that they are

also of advance age and suffering from various ailments, in support

of which the medical papers are produced from pages 16 to 118 of

the compilation. It is next submitted that the concerned Advocate

representing the applicants did not advice the applicants to

challenge the appellate decree. It is submitted that the decree

holders also represented that they will explore the possibility of

settlement and therefore, the applicants may not challenge the said

Judgment and Decree. Lastly, it is submitted that on account of the

lock down and consequent suspension of the physical court working,

the applicants were unable to approach within time. He, therefore,

submitted that the applicants were prevented from circumstances

beyond their own control from filing the appeal within time and

thus, according to the learned counsel, the applicants have made

Sneha Chavan page 3 of 8 21 ia 206-21

out sufficient cause, for not filing the appeal, within time. He,

therefore, submitted that the delay be condoned.

8. Mr. Warunjikar, the learned counsel for the respondent nos. 1

to 3 referring to the affidavit-in-reply has submitted that there were

several applications filed on behalf of the applicants before the

Executing Court in the interregnum and therefore, in the submission

of the learned counsel, it cannot be accepted that the applicants

were prevented on account of any disability as to age/illness or

illiteracy and/or want of advice in filing the Second Appeal. The

learned counsel also pointed out that there is suppression of

material facts, inasmuch as the applicant no.1 had entered into a

issar chitti with the decree holders, which aspect, is now sought to

be denied in the rejoinder. He, therefore, submitted that the

applicants are not coming with clean hands and in any event, there

is no case made out for condonation of the gross delay.

9. On behalf of the respondents, reliance is placed on the

decision of the Hon'ble Supreme Court in Esha Bhattacharjee v/s.

Managing Committee of Raghunathpur Nafar Academy and Ors.1

1 (2013) 12 SCC 649

Sneha Chavan page 4 of 8 21 ia 206-21

10. I have carefully considered the rival circumstances and the

submissions made.

11. The only question is whether the applicants have made out

sufficient cause for condonation of delay and the answer is in the

negative for the following reasons.

12. The condonation is sought on the ground that the applicants

are poor labourers, who are illiterate and on account of their

advance age and various ailments, were unable to take steps for

filing the Second Appeal. It is submitted that they were not advised

by the Advocate to challenge the appellate decree and there was

also representation from the decree holders about a possibility of

settlement/compromise. Lastly, it is submitted that on account of

suspension of physical court working from March, 2020, no steps

could be taken. In my considered view, none of these grounds,

which are essentially of an omnibus nature, can be accepted. It has

come on record that in the interregnum the applicants filed several

applications before the Executing Court for various reliefs and thus,

it cannot be accepted that for want of advice or a disability on

account of age or ailments, the applicants were prevented from

filing appeal. That apart, it appears that there were in all 11

Sneha Chavan page 5 of 8 21 ia 206-21

defendants. The applicant No.4 is shown to be 45 years of age and

thus, it cannot be accepted that all the applicants and for the matter

of that the defendants were prevented on account of their age and

ailments in filing the appeal within time.

13. As noticed earlier, the applicant No.4 is shown to be of 45

years of age and the applicants/ defendants could have taken steps

for filing the appeal within time as there was a common interest

involved in challenging the Judgment and Decree of removal of

encroachment. The contention that on account of any representation

from the decree holders, the applicants were prevented from filing

the appeal within time, also cannot be accepted. In a given case a

party can wait for a reasonable time in the event, any such attempt

for settling the matter and a genuine effort in that regard is shown

to be existing. However any such representation, even if there be

any, would not justify an aggrieved party waiting for over five years

in filing the appeal. In my view, the considerations which are

relevant, essentially proceed on the principle that the party should

be diligent in availing of the remedy which is not forthcoming in the

present case.

      Sneha Chavan                                             page 6 of 8
                                                       21 ia 206-21

14. Lastly, coming to the ground of lock down, even here the

suspension of the physical court working was from the third week of

March 2020 till the end of the year. Even, during this time, urgent

filing of the matters was permitted and hearings were conducted

through video conferencing. That apart, even if, this period is

excluded, there is a delay of more than four years, which itself is of

a substantial nature.

15. The Hon'ble Supreme Court in the case of Esha Bhattacharjee

(supra) after taking survey of several decisions holding the field, has

culled out the principles which are germane, while considering the

prayer for condonation of delay. It has been inter alia held that

although the courts can take a liberal view, where the delay is of a

short duration, the cases where there is a gross or substantial delay,

requires a stricter approach. The delay cannot be condoned on

general/casual or fanciful grounds. In such cases, the delay cannot

be condoned so as to expose the adversary to a further litigation. In

the present case, the respondent nos.1 to 3 are prosecuting the legal

remedy from the year 2009 and at the fag end when the decree is

sought to be executed, the present application is filed by some of the

defendants.

      Sneha Chavan                                              page 7 of 8
                                                       21 ia 206-21

16. Considering the over all circumstances, I do not find that the

applicants have made out any sufficient cause. The application is

without any merit and is accordingly dismissed, with no order as to

costs.

C.V. BHADANG, J.

      Sneha Chavan                                              page 8 of 8