Bombay High Court
Ashroba Shripati Takat And Anr vs Babarao Shahurao Sopane And Ors on 12 October, 2021
Bench: V. V. Kankanwadi
ca-7639-2012.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.7639 OF 2012
IN SAST/16615/2012
ASHROBA S/O SHRIPATI TAKAT AND ANR
VERSUS
BABARAO S/O SHAHURAO SOPANE AND ORS
...
Mr. K. S. Warad h/f Mr. S. V. Warad, Advocate for applicants.
Mr. Phulpagar h/f Mr. P. R. Katneshwarkar, Advocate for respondent
No.1.
Mr. R. B. Deshpande, Advocate for respondent No.3.
...
CORAM : SMT. VIBHA KANKANWADI, J.
Reserved on : 06.09.2021
Pronounced on : 12.10.2021
ORDER :-
. Present application has been filed for getting the delay of 1305
days condoned in filing second appeal. Present applicants are original
defendant Nos.3 and 4. Present respondent No.1 is the plaintiff, who
had filed Special Civil Suit No.165 of 1997 (Old Special Civil Suit
No.159 of 1996) before learned Civil Judge Senior Division, Gangakhed
Dist. Parbhani for declaration and permanent injunction. The said suit
came to be decreed on 24.07.1998. Present appellants then challenged
the said judgment and decree by filing Regular Civil Appeal No.48 of
2004 before learned District Judge-1, Gangakhed, Dist. Parbhani. After
(1)
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ca-7639-2012.odt
hearing both the parties, the said appeal came to be dismissed on
29.08.2008. They want to file second appeal, however, there is delay as
aforesaid. Hence, this application under Section 5 of the Limitation Act.
2. Heard learned Advocate Mr. K. S. Warad h/f Mr. S. V. Warad for
applicants, learned Advocate Mr. Phulpagar h/f Mr. P. R. Katneshwarkar
for respondent No.1 and learned Advocate Mr. R. B. Deshpande for
respondent No.3.
3. It has been vehemently submitted on behalf of the applicants that
vital rights of present applicants are involved in this case. They had
challenged the judgment and decree passed by the learned Trial Judge
before the first Appellate Court. In fact, the suit was unready, yet in the
midst judgment was delivered ex parte by the learned Trial Judge and
that is the main reason for challenging the said judgment and decree,
however, the learned first Appellate Court had not taken into
consideration all the facts and circumstances as well as law points
involved. In the first appeal also, the applicants had no knowledge about
the judgment and decree passed by the first Appellate Court. No
communication was received by them from their Advocate, who was
representing them before the first Appellate Court. They got the
knowledge about the said judgment and decree in the month of January,
(2)
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ca-7639-2012.odt
2009 and then they collected the papers. The applicants are the
illiterate farmers from the rural area, which is away from the district
place. The circumstances were beyond their control and the delay is
unintentional. The delay deserves to be condoned.
4. Per contra, the learned Advocate Mr. Phulpagar holding for Mr. P.
R. Katneshwarkar for respondent No.1 strongly opposed the application
and submitted that it appears that there was delay caused in
approaching the first Appellate Court also by the present applicants and
they again claim that there is delay in approaching this Court, how the
same reason or fact will repeat? Therefore, the delay is intentional and
deliberate. Though the decree has been passed in favour of the plaintiff
in the year 1998, he is not truly enjoying the benefit of the same. This is
unnecessary dragging of the proceedings. It was also pointed out that
the application stood abated as against respondent No.2 vide order
dated 19.11.2012 passed by this Court.
5. It appears that the present appellants had filed the first appeal
before this Court in the year 1999. It appears that when pecuniary
jurisdiction got increased, the appeal was transferred to the District
Court. The applicants are contending that though the appeal was
decided on 29.08.2008, their Advocate had not informed them about the
(3)
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ca-7639-2012.odt
decision. There is no material before this Court to cross check it. So
also, there is no material to come to conclusion that the said statement
is false. The fact remains that the applicants are illiterate, coming from
rural area and, therefore, whatever reason has been given can be said to
be reasonable and sufficient to condone the delay. The inconvenience
that would be caused to respondent No.1 deserves to be compensated in
terms of money. As regards the effect of abatement of the
application/appeal as against respondent No.2 would be considered at
the time of admission of the second appeal. Hence, the following
order :-
ORDER
I) Application stands allowed and disposed of.
II) The delay caused in filing second appeal stands condoned,
subject to deposit of cost of Rs.10,000/- in this Court within a
period of one month.
III) After the amount is deposited, registry to verify and register
the second appeal.
IV) The amount so deposited be given to respondent No.1, who
is the contesting party.
[SMT. VIBHA KANKANWADI, J.]
scm
