Shri Ramesh S/O Vitthalrao Gawali vs Smt. Bhawanadevi W/O Yogendra ...
2021 Latest Caselaw 14708 Bom

                                                         1                                    28.WP.7306-2018.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                            WRIT PETITION NO. 7306 OF 2018
                       ( Shri Ramesh S/o Vitthalrao Gawali
                                       Vs.
                 Smt. Bhawanadevi W/o Yogendra Shukla & Ors. )

Office Notes, Office Memoranda                           Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders

                                  Shri J.S. Wankhede, Advocate for the petitioner.

                                  CORAM:          AVINASH G. GHAROTE, J.

DATED : 07th OCTOBER, 2021.

Heard Mr. Wankhede, learned counsel for the petitioner.

2. The petition challenges the order dated 20.02.2017, passed on the application for condoantion of delay which has been rejected by the learned District Judge-7, Nagpur.

3. Mr. Wankhede, learned counsel for the petitioner submits, that the delay has been properly explained in the application, by making a statement, that the papers were given to the counsel for filing of an appeal and due to the ill health of the petitioner, he could not approach the counsel, who also did not file the appeal. The counsel is also stated to have passed away and it is only on 28.07.2016, that the petitioner upon acquiring

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knowledge has filed the said application.

4. A perusal of the application, indicates that a suit for specific performance being Spl. Civil Suit No. 259/2008, was filed against the present petitioner, in which, the petitioner though served, did not appear, as a result of which, the said suit was decreed Ex-parte on 20.06.2012 by the 2 nd Jt. Civil Judge Senior Division, Nagpur. The papers thereafter, are said to have been handed over by the petitioner to Advocate B.S. Halmare, who it is stated has not filed the appeal before the High Court and is subsequently stated to have passed away. It is also stated, that the appellant had several ailments, due to which, after the knowledge of the death of the counsel, it was found that the appeal was not filed, as a result of which, certified copy of Judgment and Decree was applied for and received on 02.12.2015 and the appeal alongwith the application for condonation of delay came to be filed on 28.07.2016.

5. The record demonstrates, that the petitioner at the first instance inspite of the service of the suit summons, did not bother to appear in Spl. Civil Suit No. 259/2008, as a result of which, the suit proceeded Ex-parte and was decreed on 20.06.2012. The petitioner was aware of the decree

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which is indicated from the fact that he claims that Advocate B.S. Halmare was engaged to file an appeal, however, there is no explanation forthwith coming thereafter, as to why, since 20.06.2012 onwards the petitioner did not approach the erstwhile counsel, nor the application bears the date of demise of the counsel. The ailments which are listed in para 4 of the application, all are of the year 1999 and 2010 and not thereafter. Nothing has been placed on record, after 2012, to justify the delay, which is of 1469 days in filing of the appeal. The learned Court below, therefore, was clearly justified, in noting the conduct of the petitioner and declining to condone the delay. Though, a liberal approach is required to be adopted, in the matter of condoning delay, however, the same cannot be merely for the sake of asking and some justifiable reasons, is required to be found, for the purpose of condoning the delay, which is clearly absent in the instant matter.

6. I therefore, do not consider this to be a fit case, to interfere with the impugned order passed by the Court below. The petition is therefore dismissed with no order as to cost.

JUDGE SD. Bhimte