Bombay High Court
Damodar S/O Balkisan Dhoot vs Bahadursing S/O Ramsing Rajput ... on 4 March, 2021
Bench: V.M. Deshpande
1 040321wp3239.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 3239 OF 2019
DAMODAR S/o BALKISAN DHOOT
VERSUS
BAHADURSING S/o RAMSING RAJPUT AND OTHERS.
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Mr. A. J. Thakkar, Advocate for the petitioner.
Mr. V. M.Gadkari, Advocate for respondent no.4
CORAM : V. M. DESHPANDE, J.
DATE : MARCH 04, 2021.
1. Heard Mr. A. J. Thakkar, learned counsel for the
petitioner and Mr. V. M. Gadkari, learned counsel for
respondent no.4. Though, the other respondents are
served, nobody is appearing for them.
2. The petitioner is the original plaintiff. He filed a suit
for declaration and restoration of the possession. It was
registered as Regular Civil Suit No. 03 of 2013 on the file
of learned Civil Judge, Senior Division, Malkapur. The
learned Judge passed order dated 20.06.2017 below
Exh.1 and in view of the order passed below Exh.64, the
plaint was returned to the petitioner/plaintiff to file it before
the proper forum. The petitioner, thereafter, filed an
appeal before in the Court of learned District Judge,
Buldhana link Court at Malkapur. The said appeal was
barred by limitation. Therefore, he filed an application
under Section 5 of the Limitation Act. The said was
registered as Misc. Judicial Case No. 15 of 2017. The
learned Ad-hoc District Judge-1, Malkapur vide order
dated 10.12.2018 was pleased to dismiss the application
for condonation of delay. Against the said order, present
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writ petition is filed.
3. Mr. Thakkar, learned counsel for the petitioner
submits that the petitioner is an old aged person and
therefore, the Court below ought to have condoned the
delay.
4. Though, the powers are given under Section 5 of
the Limitation Act to the Court to condone the delay,
however for exercising the said power, the applicant who
wish that the Court should exercise the said power, is
required to establish the case so that the Court can
exercise the discretion and power.
5. According to the application for condonation of
delay, the petitioner had applied for certified copy on
21.6.2017 and it was obtained by him on 06.7.2017. The
application for obtaining remaining certified copies was
filed on 21.7.2017 and those were obtained on
29.7.2017 . It is also stated in the application that the last
date for limitation to file the appeal was 20.07.2017,
however since the petitioner was suffering from heart
disease and backbone problem, from 01.8.2017, he was
under treatment of Dr. Dipak Laddhad of Buldhana as an
indoor patient and he was discharged on 22.8.2017. In
this background, he submitted before the Court below
that the delay be condoned.
6. Even as per the petitioner, he was an indoor
patient from 01.8.2017 till 22.8.2017. In that view, the
learned Judge of the Appellate Court was right in
observing that the petitioner has failed to prove this
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particular fact because of non-production of any
document from Dr. Laddhad's hospital about the
treatment inasmuch as the discharge certificate was not
filed showing that he was admitted as an indoor patient
on 01.8.2017 and was discharged on 22.8.2017. Further,
even according to the application, the last date for filing
the appeal was 20.07.2017 and the petitioner was
admitted in the hospital on 01.8.2017. There is no
explanation whatsoever in nature for the period from
20.7.2017 to 01.8.2017. In my view, there is no error in
the judgment and order passed by the learned Ad-hoc
District Judge-1, Malkapur in not exercising the power
under Section 5 of the Limitation Act.
7. No case is made out. The writ petition is
accordingly rejected. No order as to costs.
JUDGE
Diwale
Digitally
signed by
Parag Parag Diwale
Date:
Diwale 2021.03.05
17:56:03
+0530
