Shrihari Gulabrao Naik And ... vs Bapurao Nagorao Menger And Others
2021 Latest Caselaw 14594 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


               905 CIVIL APPLICATION NO.10725 OF 2018
                         IN SAST/10681/2018

               SHRIHARI GULABRAO NAIK AND ANOTHER
                                VERSUS
               BAPURAO NAGORAO MENGER AND OTHERS
                                   ...
            Advocate for Applicants : Mr. Wakade Ramesh I.
        Advocate for Respondents No.1 to 7 : Mr. S. A. Nagarsoge
                                   ...

                                    CORAM :   SMT.VIBHA KANKANWADI, J.
                                    DATE :    06-10-2021.

ORDER :

1. Present application has been filed for condoning the delay of 214

days in filing second appeal.

2. The appellant No.1 is the original plaintiff. At this stage itself it

is made clear that though the applicant No.2 was plaintiff No.2 before

the Trial Court and respondent No.2 before the First Appellate Court

and she expired during the pendency of the first appeal, yet it appears

that the present applicant No.1 did not inform the said fact to the First

Appellate Court. In other words, there was no compliance of Order 22

Rule 10-A of the Code of Civil Procedure. Now a note has been put

that she had expired in the year 2015 itself and except applicant No.1,

there is no heir left by her.

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3. The present applicant along with his deceased mother filed

Regular Civil Suit No.128 of 2007 for recovery of possession of the

suit property and mesne profits before Civil Judge, Junior Division,

Loha, District Nanded. The said suit came to be decreed on 29-01-

2011. The original defendants challenged the said Judgment and

decree by filing Regular Civil Appeal No.06 of 2011. The said appeal

was heard by learned District Judge-2, Kandhar, District Nanded,

and it was allowed on 30-05-2017. The learned First Appellate Court

reversed the decree passed by the leaned Trial Judge by allowing the

appeal and dismissing the suit. Hence, the applicants intend to file

second appeal, however, there is delay of 214 days.

4. Heard learned Advocate Mr. R. I. Wakade for applicants and

learned Advocate Mr. S. D. Nagarsoge for respondents. In order to

cut short, it is stated that both of them have made submissions in

support of their respective contentions.

5. For condonation of delay, the applicants submits that he is a

rustic villager having no knowledge of the law. Much time was spent

by him seeking legal advice and ultimately he has sought the legal

advice from Advocate on record. Thereafter, some time was

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required in arranging the funds. He is financially weak and was

unable to approach this Court within limitation. The delay is

unintentional and, hence, prayed for condonation of the same.

6. Affidavit-in-reply objecting the delay condonation application

has been filed on behalf of respondents No.1 to 7.

7. The learned Advocate has relied on the decision in Esha

Bhattacharjee vs Mg.Commit.Of Raghunathpur Nafar Academy and

others, reported in (2013) 12 SCC 649, wherein principles have been

laid down in respect of approach to the such applications for

condonation of delay.

8. Taking into consideration the pleadings, it can be said that

ignorance of law is no excuse. The application has been kept as

vague as possible. The time required for seeking legal advice cannot

run beyond the period of limitation as Advocates are available for

the guidance of people at almost all the places including the Taluka

places. Secondly, weak financial condition is also not reasonable

ground as the Legal Aid Services are provided at the cost of the

State from Taluka Legal Services Authority, then at the District level,

it is District Legal Services Authority, and even in the High Court,

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there is such Wing which is for the help of needy people. When the

legal advice would have been sought by applicant No.1, the concern

Advocate could have also advised him to approach the Legal Aid

Department. This Court in Kamalbai w/o Narasaiyya Shrimal and

another vs. Ganpat s/o Vithalrao Gavare, reported in 2006 SCC

OnLine Bom 1126, has held that,

"Delay cannot be condoned only because it is unintentional. Mere poverty cannot be a ground for condonation of delay."

9. It is to be noted in this case that the First Appellate Court has

given the decision on 30-05-2017 and the present applicant had

made application for getting certified copies on 04-10-2017. That

means, there is almost five months delay or five months duration

that was consumed by the applicant No.1 even to collect the

certified copies. Therefore, it can be inferred that prior to receipt of

the certified copies, the Advocates would not have given him legal

advice to approach this Court. If he want to say that he had

approached the same Advocate who had represented him before the

First Appellate Court then he could not have taken so much of time

to approach this Court. Therefore, from any angle if we consider the

facts, it cannot be said that the present applicant has given

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reasonable ground much less sufficient to condone the delay. It has

to be reiterated that the duration of the delay is not material but the

reason that is given for getting that delay condoned, will be

material. Here, since the reason is not reasonable and sufficient,

the application deserves to be rejected, accordingly it is rejected.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-