Smt. Renu Thapa Alias M.G. ... vs Smt. Dundawaa Shirudruppa ...
2021 Latest Caselaw 1354 Bom

                   Dusane                                1/4               20 wp 12718.2017.doc


                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                              CIVIL APPELLATE JURISDICTION
Bhalchandra
G. Dusane
Digitally signed by
                                            WRIT PETITION NO.12718 OF 2017
Bhalchandra G. Dusane
Date: 2021.01.20
18:58:16 +0530




                        Smt. Renu Thapa Alias M.G. Udaykumar ....        Petitioner

                                Vs.

                        Smt. Dundawaa Shivrudruppa Kalimani         ....   Respondents
                        & Ors.

                        Mr. Yatin R. Shah a/w Shivam Bhagwati a/w Shahzad Khajotia a/w
                        Apurva Pawar for the Petitioner


                                                  Coram : NITIN W. SAMBRE, J.

Date : 20th JANUARY, 2021 P.C.:

1. The Petitioner-tenant suffered the eviction decree against

which an appeal was preferred, wherein there was a delay of 1 year, 11

months and 7 days. Vide the order impugned dated 6 th June, 2017, the

learned District Judge-8, Pune rejected the prayer for condonation of

delay. As such, this petition.

2. Heard learned counsel appearing for the Petitioner. His

submissions are that the decree was exparte and conditional. It was

incumbent on the part of decree holder to communicate the decree Dusane 2/4 20 wp 12718.2017.doc

within a period of one month and submit compliance thereof to the

Court, who has passed the decree i.e. Small Causes Court, Pune.

According to the learned counsel, the same was never complied with.

He would invite attention of this Court to paragraph 23 of the stay

application moved in the appeal, wherein a specific ground to that

effect was raised. He was fair enough to invite attention of this Court

to the reply to the said pleadings given by the decree holder wherein

the decree holder has denied the claim of the Petitioner/judgment

debtor.

3. In the aforesaid background, according to learned counsel

for the Petitioner once the condition is not complied with, the Petitioner

has every right to assail the decree. The further contention is that the

delay is appropriately explained as the Petitioner-tenant was out of

town for almost three years, and there was no communication about

the proceedings, which the Court below failed to consider.

4. With the assistance, I have gone through the respective

pleadings and also the observations made in the order impugned.

Dusane 3/4 20 wp 12718.2017.doc

5. Admittedly, there is a delay of 1 year, 11 months and 7

days. In support of condonation of delay, the bonafide cause i.e. sought

to be established was that the Petitioner-tenant was out of town for

almost three years and as such there was no communication about the

court proceedings to her. The further contention of the learned counsel

for the Petitioner is that even if presuming that there is exparte decree,

the same was conditional and the condition is not complied with. At

this stage, it is worth to observe here that the decree for eviction is

already executed and the Petitioner has lost the possession way-back.

6. Apart from above, the cause cited in support of

condonation of delay cannot be termed to be sufficient cause

particularly when it was well within the knowledge of the Petitioner

that the decree was put to execution.

7. The appellate Court has observed that the Petitioner has

participated in the execution proceedings, as such she has knowledge

about passing of the decree.

8. In the light of observations made herein-above, I see no

reason for causing any interference in extra ordinary jurisdiction.

Dusane 4/4 20 wp 12718.2017.doc

9. The writ petition as such fails. Dismissed.

( NITIN W. SAMBRE, J. )